:^ 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  TREATISE 


ON   THE    LAW   OF 


TRUSTS  AND  TRUSTEES 


BY 

JAIRUS   WARE   PERRY 

t  'I 

FIFTH   EDITION 
EMBODYING    RELEVANT   CASES    DOWN   TO    DATE 

By    JOHN    M.    GOULD 


IN  TWO   VOLUMES 

Vol.  I. 


BOSTON 
LITTLE,  BROWN,  AND   COMPANY 

1899 


Entered  according  to  Act  of  Congress,  in  the  year  1872, 

By  Jairus  Ware  Perry, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

Entered  according  to  Act  of  Congress,  in  the  year  1874, 

By  Jairus  Ware  Perry, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

Copyright,  1S82, 
By  William  Perry. 

Copyright,  1889,  1899, 
By  Leverett  S.  Tuckeeman  and  Andrew  Fitz,  Trustees. 


vJ 


©nibersitg  ^ress: 
John  Wilson  and  Son,  Cambridge,  U.S.A. 


TO  THE  HONOKABLE 

HORACE    GRAY,    JR., 

ONE   OF   THE   ASSOCIATE   JUSTICES   OF   THE   SDPEEME   JUDICIAL   COURT 
OF    MASSACHUSETTS, 

THIS  WORK   IS  INSCRIBED  IN  ACKNOWLEDGMENT  OF  THE  ASSISTANCE  RECEIYED 

FROM   HIS  JUDICIAL  OPINIONS,   AND  FROM  HIS   PEHSONAL  INTEREST 

IN   THE   PROGRESS  OF   ITS   CONSTRUCTION, 

BY   THE    AUTHOR. 


66781^ 


PREFACE 

TO  THE  FIFTH  EDITION. 


Mr.  Perry's  learned  and  exhaustive  treatise  upon  the 
law  of  Trusts  and  Trustees  has,  in  its  different  editions, 
been  so  constantly  consulted,  tested,  and  relied  upon  by 
the  profession,  and  is  so  interwoven  with  the  decisions 
of  the  courts,  as  to  make  it  at  the  present  time  one  of 
the  leading  monuments  of  the  law.  As  nearly  every 
relation  of  life,  or  course  of  dealing,  may  readily  give 
rise  to  a  trust,  the  subject  is  evidently  capable  of  in- 
definite expansion,  and  many  extensions  or  qualifica- 
tions of  the  author's  statements  of  principles  could  now 
be  well  made  in  the  text,  and  pointed  illustrations  of 
the  application  of  general  rules  be  there  added ;  but 
this,  although  done  to  some  extent  by  the  preceding 
editors,  has  not  been  thought  advisable  in  the  present 
edition,  as  the  judicial  opinions,  in  which  the  author's 
sentences  are  quoted,  are  now  so  numerous  that  the 
importance  of  accurately  preserving  such  quoted  clauses 
is  clearly  apparent.  The  notes  added  in  this  edition, 
which  are  indicated  by  letters,  and  are  in  double 
columns  at  the  foot  of  the  pages,  should  therefore  be 
consulted  with  added  care,  as  they  often  indicate  new 
lines  of  departure,  or  qualifications,  limitations,  or  lucid 


Vi  PREFACE   TO   THE   FIFTH   EDITION. 

illustrations  of  the  author's  rules.  This  is  especially 
true  of  resulting  and  constructive  trusts,  where  part 
payment  of  the  consideration,  or  fraud  or  theft,  give 
rise  to  delicate  problems  of  substantial  justice  as  to  the 
adjustment  of  equities  between  investors,  or  deceived 
or  trusting  property-owners,  on  the  one  hand,  and 
innocent  purchasers  and  those  familiar  with  legal  rules 
on  the  other.  Discretionary  and  implied  powers,  the 
duties  of  life-tenants  and  remainder-men  to  each  other, 
agents  as  trustees,  the  following  of  trust  funds,  and 
investments,  are  prominent  among  the  other  topics 
which  have  been  specially  developed  in  this  edition, 
in  which  about  four  thousand  new  decisions  and 
authorities  have  been  added.  Examination  of  the  new 
notes  will  best  disclose  the  amount  of  care  and  labor 
devoted  to  the  new  edition. 

JOHN  M.   GOULD. 
Boston,  Sept.  1,  1899. 


PREFACE 

TO   THE   FOURTH   EDITION. 


In"  all  the  courts  of  last  resort  in  this  country,  the 
judges,  continually  and  as  a  perfectly  understood  and 
settled  thing,  refer  to  Perry  on  Trusts  as  the  standard 
authority  upon  all  questions  of  law  and  equity  pertain- 
ing to  its  subject-matter.  Many  times  eminent  judges 
in  writing  their  opinions  have  deemed  it  sufficient 
proof  of  a  principle  or  rule  they  wished  to  make  use 
of,  simply  to  state  it  with  a  reference  to  Perry;  and 
indeed  few  judges  could  hope  to  arrive  at  more  correct 
conclusions  or  more  convincing  proof  of  them  than  the 
clear,  strong  mind  and  intense  industry  of  the  author 
enabled  him  to  attain.  The  heart's  blood  of  his  best 
manhood  he  poured  into  this  study ;  many  buried  years 
bloom  in  this  book,  —  it  is  the  flower  of  a  vigorous  life. 

It  is  analytic,  orderly,  and  symmetrical,  and  every- 
where marked  by  comprehensive  generalization,  accu- 
rate detail,  and  exhaustive  citation.  So  perfect  is  it 
that  the  new  cases  have  not  called  for  a  single  new 
chapter,  and  for  less  than  twenty-five  new  sections. 
Three  thousand  cases  decided  since  the  last  edition, 
and  referring  in  some  way  to  trusts  or  trustees,  have 
been  examined  by  the  present  editor.  Most  of  them 
were  found  not  to  involve  any  principle  of  the  law  of 


VIU  PREFACE. 

trusts,  being  merely  related  in  name  to  our  subject, 
because  a  trustee  was  involved  in  a  dispute  as  to 
whether  a  certain  contract  was  within  the  statute  of 
frauds,  or  parol  evidence  was  admissible  for  a  given 
purpose,  etc.,  —  matters  which  pertain  to  other  depart- 
ments of  law  than  that  with  which  we  are  dealing. 
The  results  of  about  one  thousand  new  cases  have  been 
embodied  in  the  text  of  this  edition.  There  is  a  marked 
tendency  in  the  suits  of  each  decade  to  leave  the  old 
battle-grounds  and  cluster  about  a  few  comparatively 
new  and  unsettled  points.  The  existence  of  an  im- 
plied or  resulting  trust,  the  right  of  a  cestui  to  follow 
trust  property  and  its  proceeds,  and  the  rights  of  cred- 
itors, have  been  such  muster-fields  during  the  last  few 
years,  and  many  new  phases  of  these  old  questions 
will  be  found  in  the  chapters  that  treat  of  them.  The 
old  section  numbers  have  not  been  disturbed,  but  the 
figures  at  the  top  of  each  page  refer  to  sections,  not  to 
pages  as  heretofore.  The  section  indices  at  the  heads 
of  the  chapters  have  been  much  improved  by  group- 
ins;  the  references  under  sub-heads,  and  the  main  index 
has  been  bettered  in  the  same  way,  and  also  somewhat 
enlarged.  Every  case  inserted  in  this  edition  has  been 
carefully  examined  by  the  editor  in  person,  and  it  has 
been  his  effort  throughout  to  put  no  work  upon  the 
book  that  would  not  be  in  keeping  with  its  high 
character. 

FRANK  PARSONS. 
Boston,  October,  1889. 


ADVERTISEMENT   TO  THE  THIRD   EDITION. 


The  steady  demand  for  the  former  editions  of  this 
treatise  on  the  Law  of  Trusts,  and  the  frequent  refer- 
ences to  it  in  the  reported  cases,  attest  the  estimation 
in  which  the  work  is  held  by  the  profession,  and  its 
assured  place  among  the  standard  text-books  of  the 
law,  such  as  was  anticipated  for  it  by  those  who  knew 
the  author  best,  and  were  familiar  with  his  studious 
habit,  his  ability  and  learning.  It  is  very  much  to  be 
regretted  that  by  Mr.  Perry's  lamented  death,  at  an 
age  when  some  of  the  best  work  might  reasonably 
have  been  expected  from  him,  we  have  lost  the  ripe 
fruits  of  the  study  and  thought  which  he  was  con- 
stantly giving  to  the  subjects  of  which  his  book  treats, 
so  long  as  health  and  strength  allowed  him  to  study. 

In  the  preparation  of  the  present  edition,  notes  and 
references  have  been  made  to  the  decisions,  since  the 
publication  of  the  last  edition,  bearing  upon  the  topics 
discussed  in  the  book,  with  occasional  additions  of  old 
cases  which  have  come  under  observation,  leaving  the 
author's  text  and  notes  generally  as  they  were  written, 
without  incurring  the  risk  of  marring  what  was  well 


X  ADVEKTISEMENT   TO   THE   THIRD   EDITION. 

done  before.  The  arrangement  and  numbering  of  sec- 
tions remain  as  in  the  last  edition.  Much  time  and 
labor  have  been  expended  in  revising  the  citations ; 
and  a  large  proportion  of  them  have  been  verified  or 
corrected,  and  inaccuracies  which,  in  the  haste  of  prep- 
aration of  the  former  edition,  had  crept  in,  have  been 
corrected.  I  am  indebted,  for  assistance  in  this  work 
of  verification,  to  my  young  friends,  Messrs.  William 
Perry  and  Alden  P.  White  of  the  Essex  bar,  upon  the 
former  of  whom  now  devolves  the  duty  of  upholding 
in  the  profession  the  name  and  fame  of  a  worthy 
father.  The  index  of  subjects  has  also  been  revised 
and  enlarged  with  many  additional  references,  by 
which,  it  is  hoped,  the  body  of  learning  in  the  text 
has  been  made  more  easily  accessible,  and  the  general 
usefulness  of  the  book  increased. 

C. 
Salem,  February,  1882. 


ADVERTISEMENT 

TO    THE    SECOND    EDITION. 


The  rapid  absorption  of  the  first  edition  of  this  work 
into  the  hands  of  the  profession  has  not  left  to  the 
Author  so  much  time  as  could  have  been  desired  for 
the  preparation  of  a  second  edition ;  nor  could  the 
necessary  work  have  been  done  at  all,  unless  it  had 
been  constantly  in  his  hands.  Even  before  the  first 
edition  had  been  sent  forth,  work  was  done,  and  mate- 
rials accumulated,  to  improve  the  second,  if  it  should 
ever  be  called  for.  At  no  time  has  there  been  a  re- 
laxation of  thought  and  study  upon  the  subject.  The 
new  cases  have  been  assimilated  as  the  Reports  came 
along,  and  old  cases  have  been  added  as  they  fell 
under  notice  in  business  or  study.  The  Author  owes 
a  debt  of  gratitude  to  his  professional  brethren  in  every 
part  of  the  country,  for  many  valuable  criticisms,  sug- 
gestions, and  references  to  authorities.  Thirty-three 
new  sections  upon  the  trusts  that  arise  under  power  of 
sale  mortgages,  and  deeds  of  trust  in  the  nature  of 
mortgages,  have  been  added  ;  and  many  new  sections 
upon  important  questions  are  scattered  through  the 
work.     The  numbers  of  the  sections  of  the  first  edition 


Xii  ADVEETISEMENT   TO    THE   SECOND   EDITION. 

are  preserved,  that  there  may  be  no  confusion  in  the 
citations  of  the  two  editions. 

The  Author  has  been  reluctant  to  swell  the  book  into 
two  volumes,  but  it  was  found  impossible  to  compress 
the  materials  into  a  single  volume  of  a  form  and  size 
reasonably  convenient  for  use.  In  sending  forth  this 
edition  the  Author  hopes  that  it  may  do  something  to 
lighten  the  toils  of  a  laborious  profession,  and  that  it 
may  meet  with  the  same  kind  indulgence  which  was  so 
liberally  bestowed  upon  the  first. 

Salem,  Mass.,  Sept.  15, 1874. 


PREFACE. 


An  American  book  upon  the  subject  of  Trusts  has 
long  been  needed  by  the  profession.  At  the  solicita- 
tion of  too  partial  friends,  the  writer  was  induced  to 
undertake  its  preparation.  The  result  is  now  given  to 
the  public. 

The  writer  of  a  law-book  would  be  inexcusable  if  he 
failed  to  use  all  the  materials  at  his  command,  which 
could  in  any  way  enable  him  to  state  and  illustrate  the 
law.  The  treatises  and  opinions  of  eminent  writers,  as 
well  as  the  reports  of  the  decisions  and  opinions  of 
judges,  must  all  be  studied  and  mastered.  And  where 
the  book  is  intended  for  the  daily  use  of  the  lawyer  in 
busy  practice,  it  must  contain  a  notice  and  citation  of 
the  latest  cases  and  authorities.  To  this  end  all  the 
treatises  and  essays,  as  well  as  the  reported  decisions, 
upon  the  subject,  have  been  used. 

In  addition  to  the  original  opinions  of  judges  con- 
tained in  the  Reports,  the  excellent  treatise  on  the 
Law  of  Trustees,  by  Mr.  Hill,  and  the  notes  and  com- 
mentaries of  the  learned  American  editors,  have  been 
carefully  considered  upon  all  the  subjects  treated  by 
them. 

The  most  complete  work  upon  the  Law  of  Trusts  is 
the  fifth  edition  of  Mr.  Lewin's  Treatise.  This  work, 
first  printed  more  than  thirty  years  ago,  has  received 


xiv  PREFACE. 

in  its  various  editions  the  most  careful  emendations, 
corrections,  and  additions  by  its  author,  until  in  the 
last  edition  it  has  grown  into  a  remarkably  full  and 
clear  exposition  of  the  Law  of  Trusts,  as  administered 
in  England. 

It  has  been  the  constant  object  of  the  writer  to  cover 
all  the  ground  embraced  by  the  treatises  of  Mr.  Lewin 
and  Mr.  Hill,  so  far  as  the  same  is  important  to  the 
American  lawyer ;  and,  in  addition,  to  include  such 
other  subjects  and  matters,  relating  to  the  Law  of 
Trusts,  not  treated  fully  in  those  works,  as  are  useful 
and  necessary  in  American  practice. 

Perhaps  the  accumulation  of  authorities  upon  the 
many  topics  discussed  may  call  for  some  explanation. 
A  large  and  increasing  number  of  States  and  courts  are 
yearly  sending  out  a  great  number  of  volumes  of  Re- 
ports. Few  lawyers  can  have  access  to  the  whole  num- 
ber, but  all  desire  to  see  the  cases  in  their  own  State 
Reports  bearing  upon  each  proposition  of  the  text.  It 
has  therefore  been  the  aim  of  the  writer  to  cite  the 
cases  in  all  the  States,  although  the  citation  of  a  few 
leading  cases  is  always  sufficient  to  sustain  an  elemen- 
tary proposition.  He  cannot  hope  that  he  has  cited  all 
the  cases  upon  the  many  matters  treated ;  but  it  has  been 
his  purpose  to  do  so,  and  this  has  caused  an  accumula- 
tion of  cases  which  to  some  may  seem  unnecessary. 

Conscious  of  defects  in  the  execution  of  his  work,  he 
trusts  that  a  liberal  profession  will  rather  consider  how 
much  of  a  difficult  task  has  been  accomplished,  than  how 
much  has  been  omitted  or  imperfectly  done. 

The  writer  cannot  send  this  book  forth  to  the  public 
without  acknowledging  the  constant  kindness  and  en- 
couragement which  he  has  received  from  his  friends 
during  the  labor  of  its  composition  ;  and  it  is  his  espe- 


PREFACE.  XV 

cial  duty  and  pleasure  to  acknowledge  his  obligations 
to  his  friend  and  associate  in  business  for  nearly  twenty 
years,  William  Crowninshield  Endicott,  Esquire, 
whose  sound  learning  and  clear  judgment  have  been  a 
never-failing  resource  in  matters  of  doubt  and  difficulty, 
and  whose  refined  and  severe  taste  has  been  freely  em- 
ployed in  pruning  redundancies  and  softening  asperities 
of  manner  and  style. 

Salem,  Mass.,  Nov.,  187L 


CONTENTS   OF   VOLUME  I. 


Page 
Index  to  Cases  Cited xxix 


CHAPTER   I. 

INTRODUCTION. 

Section 

Origin,  History,  Definition,  and  Division  or  Classi- 
fication OF  Trusts 1-27 

§  1.    The  general  nature  of  trusts. 

§  2.    The  technical  nature  of  trusts,  and  their  origin  in  the  Jidei  commissa  of 
the  Roman  law. 

§  3.    The  origin  of  uses. 

§  4.     The  inconveniences  that  arose  from  the  prevalence  of  uses. 

§  5.    The  statute  of  uses. 

§§  6,  7.     The  effect  of  the  statute  of  uses,  and  the  origin  of  trusts. 
§§  8,  9,  10.     Development  of  trusts  in  England  and  America. 

§  11.     Advantage  of  the  late  adoption  of  trusts  in  America. 

§  12.     Object  of  this  treatise. 
§§13-17.     Definition  of  trusts. 

Classification  of  trusts. 

§  18.  Simple  and  special  trusts. 

§  19.  Ministerial  and  discretionary  trusts. 

§  20.  A  mixed  trust  and  power,  and  a  power  annexed  to  a  trust. 

§  21.  Legal  and  illegal  trusts. 

§  22.  Public  and  private  trusts. 

§  23.  Duration  of  a  private  trust  and  of  a  public  trust. 

§§  24-27.  Express  trusts,  implied  trusts,  resulting  trusts,  and  constructive 

trusts. 

CHAPTER  II. 

Parties  to  Trusts  ;    and  what   Property   may  be  the 

Subject  of  a  Trust 28-72 

I.  §§  28-37.     Who  may  create  a  trust. 

§  28.  All  persons  competent  to  contract  or  make  wills  may  create 

trusts. 
§  29.  The  king  may  create  trusts. 

§  30.  The  State  may  create  trusts  ;  and  so  may  all  its  officers. 

§  31.  Corporations  may  create  trusts. 

VOL.   I.  — b 


XVlll  CONTENTS   OF  VOLUME   I. 

§  32.  The  power  of  married  women  to  create  trusts. 

§  33.  Capacity  and  power  of  infants  to  create  trusts. 

§  34.  The  marriage  settlements  of  infants. 

§  35.  Of  the  ability  of  lunatics  to  create  trusta 

§  36.  Of  conveyances  in  trust  l)y  aliens. 

§  37.  Trusts  by  bankrupts  and  insolvents. 

II.  §§  38-59.  Who  may  be  a  trustee. 

§  38.  A  person  may  convert  him.self  into  a  trustee. 

§  39,  Any  person  capable  of  taking  the  legal  title  may  take  as 
trustee.     Rules  that  govern  courts  in  appointing  trustees. 

§  40.  The  sovereign  may  be  trustee.     Question  as  to  remedy, 

§  41.  The  United  States  and  the  several  States  may  be  trustees. 

§§  42-45.  Corporations  may  be  trustees. 

§  46,  Unincorporated  societies  may  be  trustees  for  charitable  pur- 
poses. 

§  47.  Public  officers  as  trustees. 

§§48-51.  Married  women  as  trustees. 

§§  52-54.  Infants  as  trustees. 

§  55.  Aliens  as  trustees. 

§  56.  Lunatics  as  trustees. 

§  57.  A  religious  person  or  nun  as  trustee. 

§  58.  A  bankrupt  as  trustee. 

§  59.  Cestui  que  trust  may  be  a  trustee  for  himself  and  others. 

III.  §§  60-66.     Who  may  be  cestui  que  trust. 

§  60.  All  persons  may  be  cestuis  que  trust  who  may  take  the  legal 

title. 
§§  61,  62.  The  Crown  and  the  State  may  be  cestuis  que  trust. 

§  63.  Corporations  as  cestuis  que  trust. 

§  64.  Aliens  as  cestuis  que  trust. 

§  65.  Those  who  cannot  take  a  legal  interest  cannot  take  an  equi- 

table interest. 

§  66.  Except  in  certain  charitable  trusts. 

IV.  §§  67-72.     What  property  may  be  the  subject  of  a  tru.st. 

§  67.  A  trust  may  be  created  in  every  kind  of  valuable  property, 

§  68,  Possibilities,  choses  in  action,  expectancies,  and  property  not 

at  the  time  in  esse  may  be  assigned  in  trust. 
§  69.  Choses  in  action  and  expectancies  that  cannot  be  assigned  in 

trust. 
§§  70-72.  Trusts  in  land  lying  in  a  foreign  jurisdiction,  and  their  ad- 

ministration. 

CHAPTER   III. 

Express  Trusts,  and  now  Express  Trusts  are  created 
AT  Common  Law,  since  the  Statute  of  Frauds,  and 
IN  Personal  Property,  and  Herein  of  Voluntary 
Conveyances  or  Settlements  in  Trust      .     .     .     .  73-111  a 

§  73.     Division  of  trusts,  according  to  the  manner  of  their  creation. 
§§  74-77.     Trusts  at  common  law. 
§  74.  At  common  law,  a  writing  not  necessary  to  convey  land. 


CONTENTS   OF   VOLUME   I.  xix 

§  75.  Uses  might  also  be  created  without  writing,  and  so  may  trusts,  in 

States  where  the  statute  of  frauds  is  not  in  force. 
§  76.  Parol  cannot  control  a  written  trust  nor  engraft  an  express  trust 

on  an  absolute  conveyance. 
§  77.  Same  rule  as  to  trusts  created  by  parol. 

§  78.     The  statute  of  frauds,  and  its  form  in  various  States. 
§  79.  Effect  of  the  statute  upon  the  creation  of  express  trusts. 

§§  80,  81.  Effect  of  the  different  forms  of  the  words  of  the  statutes  in  the 

several  States. 
§  82.  IIow   express  trusts  may  be  proved  or  manifested  under  the 

statute. 
§  83.  Certainty  of  the  terms  of  the  trust,  and  the  person  by  whom  it  is 

to  be  declared. 
§§  84,  85.  Trusts  declared  or  proved  by  answers  in  chancery. 

§  86.  Trust  in  personal  property  may  be  created  by  parol. 

§§  87,  88.  Trusts    arising    from    gifts    mortis    causa    and    for    charitable 

uses. 
§  89.     Statute  of  wills,  and  the  execution  of  wills. 
§  90.  Trust  cannot  be  cre.atcd  in  a  will,  unless  it  is  properly  executed,  to 

pass  the  property. 
§§  91,  92.  But  might  be  manifested  by  a  recital  in  a  will  not  properly  exe- 

cuted. 
§  93.  The  effect  of  the  necessity  of  probate  of  wills. 

§  94.  Parol   evidence   cannot    convert    a    bequest    in    a  will    into   a 

trust.     An  executor  is  a  trustee  of  the  surplus. 
§  95.     When  a  trust  is  completely  created. 

An  agreement  upon  a  valuable  and  legal  consideration  will  be 

carried  into  effect  as  a  trust  or  a  contract. 
§§  96-98.  If  a  complete  trust  is  created  without  consideration,  it  will  be 

carried  into  effect. 
§  97.  But  if  anything  remains  to  be  done  to  complete  the  trust,  it  will 

not  be  carried  into  effect,  if  without  consideration. 
§  99.  Whether  a  lawful  trust  is  completely  created  or  not  a  question  of 

fact  in  each  case. 
§  100.  Trust  for  a  stranger  without  consideration  not  completed  without 

transfer  of  the  legal  title. 
§  101.  But  if  the  legal  title  cannot  be  transferred,  a  different  rule  will 

apply. 
§  102.  If  the  subject  of  the  proposed  trust  is  an  equitable  interest,  the 

legal  title  need  not  be  transferred. 
§  103.  The  instrument  of  trust  need  not  be  delivered. 

§  104.     If  once  perfected  cannot  be  destroyed,  though  voluntary. 
§  105.  Notice  not  necessary  to  trustee  or  cestui  que  trust. 

§§  106,  107.     Voluntary  settlements  upon  wife  and  children. 
§  108.  When  they  will  not  be  enforced. 

§  109.  Tendency  of  the  rule  in  the  United  States. 

§  110.  Marriage  a  valuable  as  well  as  meritorious  consideration. 

§  111.     Effect  of  a  seal. 
§  1 1 1  a.  New  York  Statute  Law. 


XX  CONTENTS   OF   VOLUME   I. 


CHAPTER  IV. 
Implied  Trusts 112-123 

§  112.    The  manner  in  which  trusts  are  implied,  and  the  words  from  which 
they  are  implied. 

§  113.     Words  from  which  a  trust  will  not  be  implied. 
§§  114-116.     Rules  by  which  trusts  will  or  will  not  be  implied. 
§§  117, 1 18.     Implied  trusts  from  directions  as  to  the  maintenance  of  children  or 
others. 

§  119.     "When  trusts  for  maintenance  are  not  implied. 

§  120.     Rules  that  govern  implied  trusts. 

§  121.     Trusts  arising  by  implication  from  the  provisions  of  a  will. 

§  122.     Implied  trusts  arising  from  contracts. 

§  123.    A  direction  to  employ  certain  persons  does  not  raise  an  implied  trust. 


CHAPTER   V. 
Resulting  Trusts 124-165  a 

§  124.     Creation  and  character  of  a  resulting  trust. 

§  125.     Divisions  of  this  kind  of  trust. 

§  126.  Resulting  trust  where  the  purchase-money  is  paid  by  one,  and  deed 

is  taken  to  another.     See  §  142. 
§  127.  Resulting  trust  where  trust  funds  are  used  to  purchase  property, 

and  title  taken  in  the  name  of  another. 
§  128.     In  what  cases  a  trust  results,  and  when  a  trust  does  not  result.     See 

§§  143,  156,  160. 
§  129.  When  a  person  uses  his  fiduciary  relation  to  obtain  an  interest  in 

or  affecting  the  trust  property. 
§  130.  Same  rules  apply  to  personal  property  unless  it  is  of  a  perishable 

nature. 
§  131.  Where  a  resulting  trust  will  not  be  permitted  as  against  law. 

§  136.  No  resulting  trust  in  a  joint  purchase. 

§  132.     Rules  as  to  a  resulting  trust. 
§§  133,  134.     Time  and  circumstances  in  the  creation  of  a  resulting  trust. 

§  135.     Parol  evidence  as  to  a  purchase  by  an  agent  not  admissible. 
§§  137,  138.     Resulting  trusts  may  be  established  by  parol. 
§  139.  May  be  disproved  by  parol  —  the  burden  of  proof. 

§  140.  Cannot  be  changed  by  parol  after  they  arise. 

§  141.     Will  not  be  enforced  after  a  great  lapse  of  time. 
§  142.    Resulting  trusts  under  the  statutes  of  New  York  and  other  States. 
§  143.     A  resulting  trust  does  not  arise  if  the  title  is  taken  in  the  name  of  wife 

or  child. 
§  144.  What  persons  it  embraces. 

§  145.  Doubts  and  overruled  cases. 

§  146.  When  it  will  be  presumed  to  be  an  advancement. 

§  147.  The  presumption  may  be  rebutted. 

§  148.  Is  rebutted  by  fraud  in  the  wife  or  child. 

§  149.  Creditors  may  avoid  such  advancements.     When  and  how. 

§  150.     A  resulting  trust  from  the  conveyance  of  the  legal  title  without  the 

beneficial  interest. 


CONTENTS   OF  VOLUME   I.  X3d 

§  151.  Every  case  must  depend  npon  its  particular  writing  and  circnm- 

stances. 

§  152.  Instances  and  illustrations. 

§§  153,  154.     If  there  is  an  intention  to  benefit  tlie  donee,  there  is  no  resulting 
trust. 

§  155.     Gifts  to  executors  may  create  resultiiif^  trusts. 

§  156.     Resulting  trusts  do  not  arise  upon  gifts  to  cliaritable  uses. 

§  157.     A  gift  upon  trust  or  to  a  trustee  and  no  trust  declared. 

§  158.     Always  a  matter  of  intention  to  be  gathered  from  the  whole  instru- 
ment. 

§  159.  Where  a  special  trust  fails  it  will  result. 

§  160.  Where  a  special  trust  fails  from  illegality  or  lapses,  it  results. 

§  160  a.  To  whom  it  results. 

§§  161,  162.     Whether  a  trust  results  from  a  voluntary  conveyance  without  con- 
sideration. 

§  163.  Equity  docs  not  favor  such  conveyances;  they  may  be  void  for 

fraud,  but  no  trust  results. 

§  164.  Voluntary  conveyances  to  wife  or  child. 

§  165.  No  trust  results  from  a  fraudulent  transaction. 

§  165  a.  How  a  resulting  trust  is  executed. 

CHAPTER  VI. 
Constructive  Trusts 166-230 

§  166.     General  nature  of  constructive  trusts.     They  arise  from  fraud. 

§  167.  Jurisdiction  of  equity  over  them,  and  the  relief  given  by  converting  the 
offending  party  into  a  trustee. 

§  168.     Classification  of  constructive  trusts. 

§  169.     General  definition  of  a  fraud  in  equity. 

§  170.    Principles  upon  which  equity  gives  relief  against  fraud. 

§  171.     Actual  fraud,  or  sugr/est in  falsi. 

§  172.  Elustrations  of  actual  fraud. 

§  173.  The  misrepresentations  and  frauds  that  equity  will  relieve  against. 

§  1 74.  The  misrepresentation  must  be  of  facts  material  to  the  contract. 

§  175.  The  misrepresentation  must  be  of  something  peculiarly  within 

the  party's  knowledge. 

§  176.  The  relief  will  depend  upon  the  form  in  which  it  is  sought. 

§  177.     Fraud  that  arises  from  concealment,  or  sti})pressio  veri. 

§  178.  This  kind  of  fraud  depends  much  upon  the  relation  of  the  parties. 

§  179.  When  a  person  may  not  be  silent. 

§  180.  Supprfssio  veri  is  generally  in  law  an  affirmative  act. 

§  181.  Courts  will  relieve  where  acts  are  fraudulently  prevented  from  being 
done  —  illustrations. 

§  182.  Trust  estahlislied  where  a  party  fraudulently  prevents  a  will  from 

bciup  made  in  another's  favor. 

§  183.     Trust  established  in  odium  spolidtoris. 

§  1 84.     Trust  established  upon  a  conveyance  made  in  ignorance  or  mistake. 

§  185.     But  if  the  conveyance  is  a  compromise,  courts  will  support  it  if  possible 

§  186.  Trust  established  when  a  deed  by  mistake  contains  more  land  tlian  was 
intended. 

§  187.  Misrepresentation  of  the  value  of  property  and  inadequacy  of  considera- 
tion. 


XXU  CONTENTS    OF   VOLUME    I. 

§  188.     Catching  bargains  with  young  heirs  and  reversioners. 
§  189.     Trust  arising  from  mental  incapacity  or  imbecility  of  parties. 
§  1 90.  Mental  weakness  —  old  age. 

§  191.  Drunkenness. 

§  192.  Duress  —  oppression  and  distress. 

§  193.  Where  several  of  these  circumstances  are  found  combined. 

§  194.     Frauds  that  arise  by  construction  from  the  fiduciary  relations  of  parties. 
§  195.  Between  trustee  and  cestui  que  trust. 

§  196.  Renewal  of  leases  in  his  own  name  by  trustee. 

§§  197,  198.         Contracts  prohibited  between  trustee  and  cestui  que  trust,  but  the 
cestui  que  trust  alone  can  avoid  them. 
§  199.  Rule  does  not  apply  to  dry  trustees. 

§  200.  Guardians  and  wards. 

§  201.  Parents  and  children. 

§§  202,  203.     Attorney  and  client. 
§  204.  Rule  applies  to  all  confidential  advisers. 

§  205.  Administrators  and  executors. 

§  206.  Principal  and  agent. 

§  207.  Directors  of  corporations. 

§  208.  Trusts  that  arise  out  of  inducements  held  out  for  marriage. 

§  209.  Other  fiduciary  relations. 

§  210.  Undefined  fiduciary  and  friendly  relations. 

§  211.     Trusts  arising  from  the  frauds  of  third  persons. 
§  212.  Frauds  upon  third  persons  as  creditors,  etc. 

§  213.  Conveyances  by  man  or  woman  on  the  point  of  marriage. 

§  214.  Illegal  and  immoral  contracts. 

§  215.  Fraud  by  pretending  to  buy  for  another. 

§  216.  Devises  or  conveyances  upon  secret  illegal  trusts. 

§  217.  Purchases  from  trustees  with  knowledge  of  the  trusts. 

§  218.  Purchases  without  notice  of  the  trust. 

§  219.  The  safeguards  thrown  around  such  purchases. 

§  220.  The  consideration  in  such  cases. 

§  221.  The  consideration  must  have  been  actually  paid. 

§  222.  Notice  of  the  trust  —  to  whom  it  may  be. 

§  223.  Notice  may  be  actual  or  constructive. 

§  224.  Purchase  of  property  from  executors  or  administrators  —  real  estate. 

§  225.  Personal  property. 

§  226.     Constructive  trusts  may  be  proved  by  parol  —  statute  of  frauds  does  not 

apply. 
§  227.     The  right  to  set  aside  a  conveyance  for  fraud  is  an  equitable  estate  that 

may  be  conveyed  and  devised. 
§§  228-230.  Statute  of  frauds  and  the  time  within  which  steps  must  be  taken  to 

avoid  a  fraudulent  conveyance. 

CHAPTER  VII. 

Trusts   that  arise  by  Equitable   Construction  in 

THE  Absence  of  Fraud 231-247  a 

§231.     Trust  by  equitable  construction.     Illustration. 

§  232.    Vendor's  lien  for  the  purchase-money  of  this  description.     States  in 
which  it  exists. 


CONTENTS    OF   VOLUME    I.  XXlll 

§  233.  This  lien  does  not  contravene  the  statute  of  frauds. 

§  234.  The  nature  of  the  iiiterest  of  the  vendor  under  this  lien. 

§§  235-237.     When  the  lien  exists  and  when  not. 
§§  238,  239.    The  parties  between  whom  the  lien  exists. 

§  240.    Trust  by  construction  where  a  conveyance  is  made  that  cannot  operate 
at  law. 

§  241.     Constructive  trust  where  trust  property  is  transferred  by  gift  from  the 
trustee. 

§  242.     Constructive  trust  where  a  corporation  distributes  its  capital  stock  with- 
out paying  its  debts. 

§  243.    A  person  holding  the  legal  title  as  security  is  a  constructive  trustee. 

§  244.     Executor  indebted  to  the  testator's  estate  is  a  constructive  trustee. 

§  245.     A  person  may  become  a  trustee  de  son  tort  by  construction. 

§  246.     An  agent  may  become  a  constructive  trustee. 

§  246  a.  Other  equitable  trusts.     See  §  247  a. 

§  247.     A  person  holding  deeds  or  papers  or  property  belonging  to  another  may 
be  a  constructive  trustee. 

CHAPTER  Vin. 

Trusts  that  arise  by  Construction  from  Powers     .     248-258 

§  248.     The  nature  of  powers  that  imply  a  trust. 

§  249.     Court  will  execute  such  powers  as  trusts. 
§§  250,  251.  Instances  of  powers  which  the  court  will  execute  as  trusts. 

§  252.     Instances  of  powers  that  are  not  trusts. 

§  253.  Where  the  power  is  too  uncertain. 

§  254.    The  power  must  be  executed  as  given,  or  it  will  remain  a  trust  to  be  ex- 
ecuted by  the  court. 
§§  255,  256.  In  what  manner  the  court  will  execute  a  trust  arising  out  of  a  power. 

§  257.  Whether  courts  will  distribute  per  stirpes  ot  per  capita. 

§  258.  And  -whether  to  those  living  at  the  death  of  donor  or  of  the  donee. 

CHAPTER  IX. 

Appointment,  Acceptance,  Disclaimer,  Removal, 
Resignation,  Substitution,  and  Number  of  Trus- 
tees, AND  Appointment  under  a  Power  ....     259-297 

§  259.     Acceptance  of  the  trust  —  how  and  when  it  should  be  accepted. 

§  260.  What  is  an  acceptance,  and  its  effect 

§  261.  How  an  acceptance  may  be  shown. 

§  261  a.  Trustee's  bond. 
§§  262,  263.  Where  an  executor  is  also  named  as  trustee. 

§  264.     Of  the  executor  of  an  executor,  or  the  executor  of  a  trustee. 

§  265.     Trustee  de  son  tort. 

§  266.     No  such  thing  as  a  passive  trustee. 

§  267.     Disclaimer  by  trustee. 

§  268.  Cannot  disclaim  after  acceptance. 

§  269.  Whether  an  heir  can  disclaim  after  the  death  of  the  trustee. 

§§  270,  271.     Parol  disclaimer  sufficient,  but  a  writing  more  certain. 

§  272.  Where  a  legacy  or  other  benefit  is  given  to  the  trustee  or  executor. 


Xxiv  CONTENTS   OF  VOLUME   I. 

§  273.  Effect  of  a  disclaimer. 

Removal  or  resignation. 
§  274.  How  a  trustee  may  be  removed  or  resign. 

§  275.  For  what  causes  may  be  removed. 

§  276.  For  what  causes  may  be  allowed  to  resign. 

§  276  a.         A  trust  shall  not  fail  for  lack  of  a  trustee.     See  §  731. 
§§  277,  278.     IIow  the  court  proceeds  iu  substituting  trustees. 
§  279.  Bankruptcy  of  trustee. 

§  280.  The  resignation  of  trustees. 

§  281.  Where  the  same  person  is  executor  and  trustee. 

§  282.  The  proceedings  to  remove  and  substitute  trustees. 

§  283.  Where  all  parties  consent. 

§  284.  Of  the  vesting  of  the  property  in  the  new  trustees. 

§  285.  Duty  of  trustee  where  all  consent  to  his  discharge. 

§  286.     Of  the  number  of  trustees. 

Appointment  of  trustees  under  a  power. 
§  287.  Trustees  cannot  appoint  their   successors  or  new  trustees  unless 

power  is  given  in  the  instrument  of  trust. 
§  288.  Caution  necessary  in  new  appointments. 

§  289.  Powers  of  appointment  frequently  matters  of  personal  confidence. 

§  290.  Occasions  or  events  upon  which  new  appointments  may  be  made. 

§291.  An  appointment  may  bo  made  to  fill  a  vacancy  occurring  before  the 

death  of  the  testator. 
§  292.  Unfitness  and  incapacity. 

§  293.  Power  cannot  be  exercised  if  the  trust  is  already  in  suit  in  court. 

§  294.  By  whom  the  power  may  be  exercised. 

§  295.  The  power  must  be  strictly  followed. 

§  296.  Who  may  be  appointed  to  exercise  the  power. 

§  297.  Who  may  be  appointed  under  a  power. 

CHAPTER  X. 

Nature,  Extent,  and  Duration  of  the  Estate  taken 

BY  Trustees 298-320 

§  298.     Where  trustees  take  and  hold  no  estate,  although  an  express  gift  is  made 

to  them.     Statute  of  uses. 
§  299.     Effect  of  the  statute  of  uses  upon  conveyancing  in  the  several  States. 
§  300.     Effect  of  the  statute  in  the  rise  of  trusts. 
§§  301,  302.     Rules  of  construction  which  gave  rise  to  trusts. 
§  303.  The  word  "  seized." 

§  304.  The  primary  use  must  be  in  the  trustee  to  raise  a  trust. 

§§  305,  306.     Personal  property  not  within  the  statute. 

§§  307,  308.     Where  the  statute  executes  trusts  as  uses,  and  where  it  does  not. 
§  309.  Where  a  charge  upon  an  estate  will  vest  an  estate  in  trustees,  and 

where  not. 
§  310.  Where  the  trust  is  for  the  sole  use  of  a  married  woman. 

§  311.  Trusts  of  personalty  are  not  executed  by  the  statute. 

§  312.     The  statute  only  executes  the  exact  estate  given  to  the  trustee ;  but  the 
trustee  may  take  an  estate  commensurate  with  the  purposes  of  the 
trust  where  it  is  unexecuted  by  the  statute.     Rules. 
§§  313,  314.  Courts  may  imply  an  estate  in  the  trustee  where  none  is  given. 


CONTENTS    OF   VOLUME   I.  XXV 

§§  315,  316.  May  enlarge  the  estate  of  the  trustee  for  the  purposes  of  the  trust. 

§  317.     Illustrations,  explanations,  and  modifications  of  the  role. 
§§  318,  319.     Rule  in  respect  to  personal  estate. 

§  320.     Distinctions  between  deeds  and  wills  in  England  and  the  United  States. 

CHAPTER  XI. 

Properties  and   Incidents  of  the   Legal  Estate  in 

THE  Hands  of  Trustees 321-356 

§  321.     Common-law  properties  attach  to  estates  in  trustees. 

§  322.  Dower  and  curtesy  in  trust  estates. 

§§  323,  324.  Dower  and  curtesy  in  equitat)le  estates  of  cestui  que  trust. 

§  325.  Forfeiture  and  escheat  of  trust  estates. 

§  326.  Trustees  must  perform  duties  of  legal  owners. 

§  327.  Forfeiture  and  escheat  of  the  equitable  estates  of  cestui  que  trust. 

§  328.  Suits  concerning  legal  title  must  be  in  name  of  trustee. 

§  329.  Who  has  possession  and  control  of  trust  estates. 

§§  330,  331.  Who  has  possession  of  personal  estate.      Rights  and  privileges  of 
trustees. 

§  332.  Who  proves  debt  against  bankrupt. 

§  333.  Who  has  the  right  of  voting. 

§  334.  Trustee  may  sell  the  legal  estate. 

§  335.  May  devise  the  legal  estate.     But  see  §  341. 

§  336.  By  what  words  in  a  devise  the  trust  estate  passes. 

§  337.  Where  a  trust  estate  passes  by  a  devise,  and  where  not. 

§  338.  The  interest  of  a  mortgagee  in  fee. 

§  339.  Propriety  of  devising  a  trust  estate. 

§  340.  Whether  a  devisee  can  execute  the  trust. 

§  341.  Rule  in  New  York,  &c. 

§  342.  Where  a  testator  has  contracted  to  sell  an  estate. 

§§  343,  344.  Rights  of  the  last  surviving  trustee,  and  his  heirs  or  executors. 

§  345.  Trust  property  does  not  pass  to  bankrupt  trustee's  assignee. 

§  346.  A  disseizor  of  a  trust  estate  is  not  bound  by  the  trust. 

§§  347,  348.  Merger  of  the  equitable  and  legal  titles. 

§§  349,  350.  Presumption  of  a  couveyauce  or  surreuder  by  trustee  to  cestui  que 

trust. 
§§  351-353.  Where  the  presumption  will  be  made,  and  where  not. 

§  354.  Must  be  some  evidence  on  which  to  found  the  presumption. 

§  355.  Is  made  in  favor  of  an  equitable  title,  not  against  it. 

CHAPTER  XII. 
Executory  Trusts 357-376 

§§  357-359.     Nature  of  an  executory  trust.     The  rule  in  Shelley's  case. 

§  360.     Distinction  between  marriage  articles  and  wills. 

§  361.     Construction  of  n)arriage  articles  and  their  correction. 

§  362.  Where  strict  settlements  will  not  be  ordered. 

§§  363,  364.     Settlement  of  per.sonal  property. 

§  365.  Construction  of  marriage  settlements. 

§  366.     Executory  trusts  under  wills. 


XXVI  CONTENTS   OF   VOLUME   I. 

§  367.  Who  may  enforce  the  execution  of  executory  trusts. 

§  368.  Inducements  for  marriage. 

§§  369,  370.     Constructiou  of  executory  trusts  under  wills. 
§  371.  The  words  "  heirs  of  the  body  "  and  "  issue." 

§  372.  When  courts  will  reform  executory  trusts. 

§  373.  How  courts  will  direct  a  settlement  of  personal  chattels. 

§  374.  Whether  courts  will  order  a  settlement  in  joint-tenancy. 

§  37.5.  What  powers  the  court  will  order  to  be  inserted  iu  a  settlement. 

§  376.  Settlement  will  be  ordered  cy  pres  the  intention. 

CHAPTER  XIII. 
Perpetuities  and  Accumulations 377-400 

§  377.     Definitions  of  a  perpetuity. 

§  378.     Executory  devises — springing  and  shifting  uses. 

§  379.     Growth  of  the  rule  against  perpetuities. 

§  380.     Application  of  the  rule.     Indefinite  failure  of  issue. 

§  381.  Applies  to  the  possible  vesting  of  estates  —  not  to  the  actual. 

§  382.  Applies  equally  to  trust  and  legal  estates. 

§  383.  An  equitable  interest  that  may  not  vest  within  the  rule  is  void.    §  23. 

§  384.  Distinction  between  private  trusts  and  charitable  trusts. 

§  385.  A  proper  trust  to  raise  money  to  be  applied  contrary  to  the  rule. 

Making  estates  inalienable. 

§  386.  Equitable  estates  cannot  be  made  inalienable  in  England. 

§§  386  a,  386  b.     How  they  may  be  made  inalienable  in  some  of  the  United  States. 

§  387.  Exception  in  the  case  of  married  women. 

§  388.  How  trusts  can  be  limited,  so  that  cestui  que  trust  cannot 

alienate.     See  §  81.5  a. 

§  389.  Limitation  of  personal  estate  to  such  tenant  in  tail  as  first  attains 

twenty-one. 

§  390.     When  courts  will  alter  trusts  and  when  not. 
§§  391,  392.     Statutes  of  various  States  in  relation  to  perpetuities. 
Accumulations. 

§  393.  Rule  respecting  trusts  for  accumulations. 

§  394.  In  England  the  rule  was  altered  by  the  Thellusson  Act. 

§  395.  Construction  of  the  Thellusson  Act. 

§  396.  Rule  against  accumulations  —  when  it  applies  and  when  not. 

§  397.  Application  of  the  income  in  cases  of  illegal  directions  to  accumu- 

late. 

§  398.  Statutes  in  various  States  as  to  accumulations. 

§  399.  Accumulations  for  charitable  purposes. 

§  400.  Accumulations  in  cases  of  life  insurance. 

CHAPTER  XIV. 

General  Properties  and  Duties  of  the  Office  of 

Trustee 401-437  5 

§  401.    A  trustee,  having  accepted  the  oflSce,  is  bound  to  discharge  its  duties. 
§  402.     He  cannot  delegate  his  authority  except  to  agents  in  proper  cases. 
§  403.  Kot  responsible  if  he  follow  directions  in  employing  agents. 


CONTENTS    OF   VOLUME    I.  XXVll 

§  404.  Where  agents  must  be  employed. 

§  405.  When  resi)oiisil)le  for  agents  and  attorneys. 

§  406.  When  not  responsible. 

§  407.  Difference  of  liability  in  law  and  equity. 

§  408.  Trustees  responsible  for  all  mischiefs  arising  from  delegating  dis- 

cretionary powers. 
§  409.  Employing  agents  or  attorneys  may  not  be  a  delegation  of  authority 

or  discretion. 
§  410.     A  sale  or  devise  of  the  trust  estate  not  a  delegation  of  the  trust. 
§  411.     Several  trustees  constitute  but  one  collective  trustee. 
§§  412,  413.     When  they  must  all  act  and  when  not. 
§  414.     As  to  the  survivorship  of  the  office  of  trustee. 
§  415.     General  rule  as  to  liability  for  cotrustees. 

§  416.  May  make  themselves  liable,  where  otherwise  they  would  not  be. 

§  417.  Trustees  must  use  due  diligence  in  all  cases,  or  they  will  be  liable 

for  cotrustees. 
§  418.  Cases  of  a  want  of  due  care  and  prudence. 

§  419.  In  case  of  collusion  or  gross  negligence,  a  trustee  will  be  liable  for 

acts  of  cotrustees. 
§  420.  When  cotrustees  are  liable  for  others  upon  sales  of  real  estate  under 

a  power. 
§  420  a.         Indemnifying  of  one  trustee  by  another. 
§  421.  As  to  liability  of  coexecutors  for  the  acts  of  each  other. 

§  422.  An  executor  must  not  enable  his  coexecutor  to  misapply  the 

funds. 
§  423.  When  executors  must  all  join  they  are  not  liable  for  each  other's 

acts ;  but  tliey  must  use  due  diligence. 
§  424.  An  executor  must  not  allow  money  to  remain  under  the  sole 

control  of  his  coexecutor. 
§  425.  Executors  and  administrators  governed  by  tlic  same  rules. 

§  426.  Ilule  where  coexecutors  or  cotrustees  give  joint  bonds  for  security 

of  the  administration  of  the  estate. 
§  427.     Trustees  can  make  no  profit  out  of  the  office. 
§  428.  Cannot  buy  up  debts  against  the  estate  or  cestui  que   trust   at   a 

profit. 
§  429.  Cannot  make  a  profit  from  the  use  of  trust  funds  in  business,  trade, 

or  speculation. 
§  430,  431.  All  persons  holding  a  fiduciary  relation,  subject  to  the  same 

rule. 
§  432.  Can  receive  no  profit  for  serving  in  their  professional  characters  a 

trust  estate. 
§  433.  Trustees  can  set  up  no  claim  to  the  trust  estate,  and  ought  not  to 

betray  the  title  of  the  cestui  que  trust. 
§  434.     In  England,  upon  failure  of  heirs  to  the  cestui  que  trust,  trustee  may 

hold  real  estate  to  his  own  use. 
§  435.     Speculative  questions. 
§  436.     In  the  United  States,  the  interest  of  the  cestui  que  trust  in  real  estate 

escheats. 
§  437.     So  it  does  in  England  and  the  United  States  in  personalty. 
§  437  a.     Contracts  of  trustee. 
§  437  b.     Signature  of  trustee. 


XXVIU  CONTENTS    OF   VOLUME    I. 

CHAPTER  XV. 

Possession  —  Custody  —  Conversiox  —  Investment  of 
Trust  Propektt,  and  Interest  that  Trustees  may 

BE    MADE    to    PAY 438-472 

§  438.     Duty  of  trustee  to  reduce  the  trust  property  to  possession. 

§  439.  Time  witliin  which  possession  should  be  obtaiued. 

§  440.  Diligence  necessary  in  acquiring  possession. 

§  441.     The  care  necessary  in  the  custody  of  trust  property. 

§  442.  In  what  manner  certain  property  should  be  kept. 

§  443.  Where  the  property  may  be  deposited. 

§§  444,  445.  How  money  must  be  deposited  in  bank. 

§  446.  "Within  what  time  trustee  should  wind  up  testator's  establishment. 

§  447.  Trustee  must  not  mix  trust  property  with  his  own. 

§  448.     When  a  trustee  is  to  convert  trust  property. 

§  449.  General  rule  as  to  conversion. 

§  450.  When  a  court  presumes  an  intention  that  property  is  to  be  converted. 

§  451.  When  the  court  presumes  that  the  property  is  to  be  enjoyed  by  ces- 

tui que  trust  in  specie. 

§  452.     Of  investment. 

§  453.  As  to  investment  in  personal  securities. 

§  4.54.  As  to  the  employment  of  trust  property  in  trade,  business,  or  specu- 

lation. 

§  455.  Eule  as  to  investments  in  England. 

§  456.  Eule  in  the  United  States. 

§§  457,  458.     Rule  as  to  real  securities. 

§  459.  Of  investments  in  the  different  States. 

§§  460.  461.     Construction,  where  the  instruments  of  trust  direct  how  investments 
may  be  made. 

§  462.  Within  what  time  investments  must  be  made. 

§  463.  Trustees  must  not  mingle  their  own  money  in  investments. 

§  464.  Must  not  use  the  trust-money  in  business. 

§  465.  Original  investments  and  investments  left  by  the  testator. 

§  466.  Changing  investments. 

§  467.  Acquiescence  of  cestui  que  trust  in  improper  investments. 

§  468.     Interest  that  trustees  must  pay  upon  trust  funds  for  any  dereliction  of 
duty. 

§  469.  When  he  is  directed  to  invest  in  a  particular  manner. 

§  470.  When  he  improperly  changes  an  investment. 

§  471.  When  compound  interest  will  be  imposed,  and  when  other  rules 

will  be  applied. 

§  472.  Rule  where  an  accumulation  is  directed. 


INDEX  TO   CASES   CITED. 


References  are  to  sections.    All  sections  up  to  472  are  in  Vol.  I. ;  all  after  472  are  in  VoL  II. 


A.  &  B.,  Tn  re  603 

Abbey  v.  Dewey  215 

Abbott,  Ex  parte  649 

Pet'r  282,  287,  334,  340 

V.  Amer.  Hard  Rubber  Co.  404 

V.  Baltimore  918 

V.  Bradstreet  891,  899,  903  a 

V.  Foote  330 

V.  Geraghty  3G1 

V.  Gibbs  795,  790 

V.  Massie  272 

V.  Reeves  832,  877,  884,  926 

Abby  V.  Dego  678 

Abeel  v.  Kadcliff  83 

Abel  I'.  Heathcote  769 

Abell  V.  Abell  474 

t'.  Howe  221,  222 

Abend  i'.  End.  Fund  Commission  736 

Abercrombie  v.  Bradford  590 

Aberdeen  v.  Blaikie  206 

Abernaithy  v.  Abemaithy  275,  627 

Abnev  v.  Kingsland  149 

V.  Miller  196 

Aborn  v.  Padelford  166 

Abraham  v.  Almon  112 

t'.  Ordway  855 

Abshire  v.  Carter  770 

Acherley  v.  Roe  872 

Acker  v.  Phoenix  97 

V.  Priest  145 

Ackernian  v.  Emott  430,  456,  459,  460,  471 

Ackland  v.  Gaisford  122 

V.  Lutley  317 

Ackleston  v.  Heap  204 

Ackroyd  r.  Smithson  160,  449,  499 

Acton  V.  White  670 

V.  Woodgate  585,  593,  596 

Adair  r.  Brimmer  422,  407 

I'.  New  Kiver  Co.  885 

V.  Shaw  217,  847,  892 

Adams  v.  Adams  38,  182,  312 

V.  Angell  347 

V.  Brackett  562,  570 

t'.  Bradley  215 

V.  Broke  460,  778 

r.  Buckland  414 

V.  Carey  83,  200 


Adams  v.  Chaplin 

380 

V.  Claxton 

443 

914 

V.  Clifton 

402,  466, 

851 

900 

V.  Cole 

635, 

706 

714 

V.  Collier 

147 

V.  Gale 

464 

V.  Gamble 

656 

V.  Green 

231 

V.  Guerard 

299 

V.  Jones 

929 

V.  Lambert 

718 

V.  Lavender 

639 

V.  Leavens 

438 

V.  Lopdell 

114 

V.  Mackey 

661 

.  V.  Paynter 

274 

287 

288 

V.  Perry 

305 

748 

V.  St.  Leger 

873 

881 

V.  Taunton 

270,  273, 

502 

806 

Adams  and  Kensington  Vestry,  In  re    114 
Adams  Female  Academy  v.  Adams        727 

Adamson  v.  Armitage  648 

Addams  v.  Heffernau  2-34 

Addis  V.  Campbell  187,  188 

Addison  v.  Bowie  612 

V.  Dawson  189 

t'.  Mascall  189 

Adev  V.  Arnold  260 

AdlJr  V.  Sewell  328 

Adlington  v.  Cann  75,  77,  83,  88,  90, 
92,  93,  7.39 

Adlum  V.  Yard  590,  596 

Adye  v.  Feuilleteau  453,  464 

iEtna  Life  Ins.  Co.  v.  Middleport  60 

Affleck  V.  James  499 

Agar  V.  Fairfax  871 

Agar-Ellis,  In  re  603 

Agassiz  V.  Squire  511  a 

Aggas  V.  Pickerell  855,  862 

Agiiew  V.  Fetterman  559 

Aguilar  v.  Aguilar  634,  658,  059 

Ahearne  v.  Hogan  193,  204 

Ahrend  i'.  Odiorne  232 

Aiken  i'.  Smith  318,  .353 

Ainslev  v.  Mead  680 

Ainslie  v.  Medlycott  34,  171 

Airey  v.  Hall  98,  100,  101,  821 

Aislabie  v.  Rice  518 

Akin  V.  Jones  60 


XXX 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Alaniz  v.  Cassenave  IGG 

Albany  Ins.  Co.  v.  Bay    655,  656,  600,  708 

Albany's  Case  705 

Albee  v.  Wyman  672 

Albert  v.  Savings  Bank  242 

V.  Ware  14 

Albright  v.  Oyster  124 

Alcock  t'.  Sloper  451,  547 

V.  Sparhawk  570 

Aldborough  v.  Frye  188 

Alden  i'.  Gregory  861 

V.  St.  Peter's  Parish  384,  701 

Aldersen,  Ex  parte  68 

V.  Temple  587 

Alderson  v.  Peel  97 

Aldrich  v.  Aldrich  114 

V.  Cooper  567.  573 

Aldridtje  v.  Dunn  237;  239 

V.  Westbrooke  888,  898 

Alemany  v.  Wensinger  820  a 

Alexander,  In  re  482 

V.  Alexander     112,  385,  408,  440,  510, 

511a,  811 

V.  Brame  103 

V.  Crittenden  639 

V.  Crosbie  220 

V.  Kennedy  205 

V.  McCullo'ch  634 

V.  McMurray  234,  559 

V.  Mills  784 

V.  MuUins  882 

V.  Pendleton  218,  219 

V.  Saulsbury  685 

V.  Summey  456 

V.  Warrance  140,  143,  144,  324 

V.  Wellington  29,  69 

V.  Williams  863 

Aleyn  v.  Belchier  511,  511  « 

Alger  V.  Fay  602  k 

V.  North  End  Savings  Bank  82 

Alison  V.  Goldtree  875 

Alkire  v.  Alkire  122 

Allcard  v.  Skinner  184 

Allen,  Ex  parte  189,  618 

V.  Addington  179 

V.  Allen  41,  629 

V.  Arkenburgh  127 

V.  Backhouse  581,  597 

V.  Bartlett  869 

V.  Baskerville  315 

V.  Chambers  84 

V.  Chatfield  199,  602  v 

V.  Coburn  678 

V.  Coster  614,  615 

V.  De  Groodt  856 

V.  De  Witt  705 

V.  Gaillard  458,  460 

V.  Gillette  195 

V.  Henderson  366,  380 

V.  Hightower  678 

V.  Imlett  17,  328 

V.  Jackson  200 

V.  Knight  218 

V.  Macpherson  182 

V.  Maddock  93 

V.  Mattison  568 

V.  Montgomery  Railway  757 

V.  Papworth  654 

V.  Parkham  380 


Allen  V.  Rumph 

361 

V.  Russell 

828 

V.  Sayer 

621 

858 

V.  Stevens 

448, 

729 

V.  Watts 

451 

V.  Wilkins 

640 

V.  Withrow 

86 

V.  Worley 

863 

Allen's  Appeal 

411 

Allerton  v.  Knowell 

634 

Alley  V.  Lawrence 

493, 

5116, 

783, 

784 

AUeyne  v.  Darcy 

246,  848 

876, 

907 

Allhusen  v.  Whittell 

551 

Alliance  Trust  Co.  v.  Nettleton  Har- 

wood  Co.  223 

Allis  V.  Billings  35,  189 

Allison  V.  Allison  183 

V.  Drake  223 

V.  Kurtz  162,  511  c 

V.  Wilson  500 

Allman  v.  Pigg  171 

Alloway  v.  AUoway  248 

I'.  Braine  869 

Almond  v.  Wilson  126 

Almy  V.  Jones  705 

Alsager  v.  Spaulding  212 

Alsbrook  v.  Reid  476  a 

Alsbury,  In  re  545 

Alsop  V.  Bell  908 

Alston  V.  Trollops  481 

Alsworth  V.  Cordly  131 

Altimius  v.  Elliott  915 

Alverson  v.  Jones  677 

Amand  v.  Bradboume  894 

Ambrose  v.  Ambrose  77,  82,  126,  137 

Amer.  Acad.  v.  Harvard  College  700, 

701,  724,  748 

Amer.  Bible  Soc.  v.  Marsh  748 

V.  Wetmore  748 

Am.  Box  M.  Co.  v.  Crosman  894 

American  Exchange  Bank  v.  Inloes       590 

V.  Walker  593 

Amer.  Sugar  Ref.  Co.  r.  Fancher   166,  837 

Ames  V.  Armstrong  426 

V.  Browning  205 

V.  Downing  428,  520,  847,  910 

V.  Fo.ster  686 

V.  Heslet  242 

V.  Holderbaura  511  b 

V.  Parkinson  440,  461,  409 

V.  Port  Huron  194 

V.  Scudder  471 

Amesbury  v.  Brown  571 

Amherst  "College  v.  Ritch  171 

Ammont    v.    New    Alexandria,    &c. 

Turnpike  Co,  757,  759 

Amory  v.  Green  460 

V.  Lord  391,  396 

V.  Lowell  552,  554 

V.  Meredith  337,  511  c 

V.  Reilly  239 

Amos  V.  Heme  Bay  P.  &c.  Co.  877 

Amphlett  v.  Parke  151 

Ancaster  v.  Mayer  562,  507 

Anderson,  In  re  280 

V.  Anderson  646,  652,  672 

V.  Austin  602  n 

V.  Baumgartner  602  n 

V.  Burchell  228 


INDEX    TO    CASES   CITED. 
[References  are  to  sections.] 


XXXI 


Anderson  v.  Burwell 

V.  Culleri 

i".  Dale_v 

V.  Dawson 

I',  Earle 

V.  Fuller 

V.  Holloinan 

V.  Jones 

V.  Lemon 

V.  Mather 

V.  Miller 

V.  Neff 

V.  Northrop 

V.  Simnis 

V.  Stacher 
Anderton  v.  Yates 
Anding  v.  Davis 


22'J,  809 
(.58 

3;jo 

511  b,  cr^b 

262,  281 

5!)1 

C()2  i 

126,  (H)2j 

538 

334,  603,  605,  610 

420 

918 

277,  428,  850 

921 

873 

GI3 

75,  91 


Andover  v.  Merrimack  County  642 

Andres  v.  Miller  599 

Andrew  v.  Andrew  547 

V.  Bible  Society  45,  402 

V.  Cooper  873 

V.  Ludlow  592 

t'.  Schmitt  409 

V.  Trinity  Hall  272 

V.  Wrifflev         228,  809,  810,  830,  805 

Andrews,  Kx'pnrte  427,  433,  487,  803 

lie,  Edwards  v.  Dewar  671 

V.  Andrews  700,  701,  730 

V.  Atlanta  K.  E.  Co.  82 

r.  Bank  of  Cape  Ann  117 

V.  Barnes  894 

V.  Bishop  501 

V.  Clark  154 

V.  Essex  Ins.  Co.  180 

V.  Hobson  98,  428 

V.  Jones  200,  627,  632,  642,  645 

V.  M'Guffog  727 

V.  Partington  117,  612,  615,  620 

V.  Salt  603 

V.  Sniithwick  804 

V.  Sparhawk  598,  795,  798,  802 

Angell  r.  Dawson  400,  470 

Aiigerstein  v.  Martin  461,  550,  551 

Angier  v.  Angier  672,  673 

V.  Stannard  351,  476  a,  901,  922, 

927,  928 

Angle,  Kx  parte  848,  870 

Angus  V.  Angus  72 

V.  Clifford  177 

Ankeney  v.  Ilannon  655 

Annesley  v.  Ashurst  474 

V.  Simeon  330,  520 

Annis  v.  Wilson  124 

Annis's  Case  693 

Anon.  116,  126,  136,  144,  157,    192.   219, 

220,  244,  255,  270,  275,  330,  402, 

415,  410,  421,  428.  431,  432,  453, 

463,  474,  511  b,  581,  596,  097,  600, 

602  q,  618,  621, 649,  003, 095,  701, 

710,  712,  725,  770,782,  795,  790, 

810,  815,  816,  818,  819,  827,  835, 

839,  841,  903  «,  904 

Ansley  i*.  Pace  820  n 

V.  Pasahro  233 

Anson,  Petitioner  277 

Anstice  v.  Brown  803 

Anthony  v.  Rees  805 

Aulones  v.  Eslava  730,  731,  743 


Antrim  v.  Buckingham  48 

-Vntrobus  v  Smith  97,  100,  103,  107,  108,  367 
Aplyn  V.  Brewer  416,  421 


Ap|)  V.  Lutheran  Congregation 
Apple  r.  Allen 
Appleton  f.  Boyd 
Ai)i)l<iy,  In  re 
Apreece  v.  Apreece 
.\rbuckle  v.  Kirkpatrick 
Arbuthnot  v.  Norton 
Archer  v.  Hudson 

V.  Moss 

V.  Preston 

r.  Rooke 
Archibald  v.  Wright 
Ardill  V.  Savage 
Arend  v.  Cottle 
Arglasse  f.  Muschamp 
Arguello's  Estate 
Arlin  v.  Brown 
Arms  V.  Ashley 
Armstrong  v.  Armstrong 

V.  Campbell 

V.  Lane 

V.  Miller 

V.  INIorrill 

V.  Park 

V.  Ross 

V.  Stoval 

V.  Walkup 
Armstrong's  Estate 
Arnold  v.  Arnold 

v.  Byard 

V.  Chapman 

V.  Congreve 

V.  Cord 

V.  Garner 

V.  Gilbert 

V.  Macungie  Bank 

V.  Ruggles 
Arnony  v.  Steinbrenner 
Arnot  V.  McClure 
Arran  v.  Tj-rawley 
Arrington  v.  Yarborough 
Artcher  v.  McDuffie 
Arthur  v.  Arthur 

V.  Comm.  Bank 

V.  Marster 
Arundel  v.  Phillpot 
Assay  V.  Hoover 
Asche  V.  Asche 
Ash  V.  Bowen 
Ashburnham  v.  Thompson 
Ashburton  v.  Ashburton 
Ashby  V.  Asliby 

V.  Blackwell 
Ashcroft  I'.  Little 
Ashley,  In  re 

V.  Bailey 
Ashton  V. 

V.  Ashton 

V.  Atlantic  Bank 

V.   Langdale 

I'.  McDougall 

V.  Thompson 

V.   Wood 
Ashton's  Charity 
Ashurst  I'.  Ashurst 

f.  Given 


733 

646 

136 

277 

119 

828 

69 

201 

182 

71 

647,  648,  652 

5116 

274 

891 

71 

443 

232,  235 

83 

380 

195,  602  !•,  803 

892,  901 

402,  408 

259,  264 

500 

232 

661 

462 

892,  918 

114 

918 

160 

385 

135,  172 

431,  432,  904 

391,  511 

247  a 

639,  640 

891 

602  u 

861 

639 

843 

184,  665 

31,  588,  590,  757 

408 

248 

336,  768 

329 

387,  652,  670 

468,  900 

605,  610 

626,  641 

929 

647,  648,  649,  651 

615 

222 

581 

371,  515 

225,  814 

61,  86,  704 

213,  653 

200 

340,  695,  705 

725 

780 

66,  299,  305,  386  a,  555 


xxxu 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Ashurst  V.  Martin  592 

V.  Mill  185 
Ashurst's  App.                  207,  230,  8G5,  800 

Ashworth  v.  Outram  600 

Aspinall  v.  Jones  52y 
Assets    Realization    Co.   v.   Trustees, 

&c.,  Ins.  Corp.  279 
Associate  Alumni  v.   General  Theol. 

Seminary  433 

Aster  V.  Wells  222 

Astley  V.  Milles  347 

Aston  V.  Aston  665 

V.  Galloway  570 

V.  Wood  157 

Aston's  Estate  4G2,  468,  918 

Trusts,  In  re  275 

Astreen  v.  Flanagan  143,  144 

Atcherley  ».  Vernon  38,  231,  616,  648 

Atcheson  v.  Atclieson  637,  644 

V.  Robertson  420,  894,  900 

Atchin's  Trusts,  In  re  714 

Athenreum  v.  Pooley  831 

Atherton  v.  Mowell  634 

V.  Worth  594 

Athey  v.  Knotts  632 

Athol  V.  Derly  71 

Atkin  V.  Lord  678 

Atkins  V.  Allen  545 

V.  Atkins  299 

V.  Kron  55,  64,  554 

V.  Rowe  135 

Atkinson,  In  re  82,  438 

V.  Atkinson  114,  242,  812 

V.  Jordan  592,  694 

V.  Marietta  757 

V.  Weidner  658 

Atlantic  Trust  Co.  v.  Woodbridge  &c. 

Co.  386 

Atterberry  v.  McDuffee  443 

Att'y-Gen.  v.  Ailesbury  605 

'v.  Alford  471 

V.  Andrew  700,  729 

V.  Andrews  478,  704 

V.  Arran  283 

V.  Aspinall  23,  31,  384 

V.  Bacchus  637 

17.  Bain  739 

V.  Baliol  Coll.  724,  725,  883 

V.  Barbour  280 

V.  Baxter  702,  718,  724 

V.  Bedford  742 

V.  Beverley  725,  745 

V.  Biddulph  737 

V.  Black  743 

V.  Blizard  698,  699,  733 

V.  Bolles  700 

V.  Boucherett  185 
V.  Boultbee          721,  724,  725,  729,  730 

V.  Bourchette  733 
V.  Bovill                      698,  699,  725,  733 
V.  Bowver                  693,  700,  730.  730, 
739,  818 

».  Brackenbury  511c 

V.  Bradlee  715 

V.  Brandeth  698,  733 

V.  Brazenose  College  745 

V.  Brecon  478 

V.  Brentwood  School  694,  695 
V.  Brereton                 694,  701,  732,  746 


Att'v-Gen.  v.  Brettingham  737 

V.  Brewer's  Co.  745,  803,  871, 
900,  901 

V.  Brickdale  412 

V.  Briggs  700,  727 

V.  Bristol  156,  725,  745 

V.  Brown  707,  724,  879 

V.  Browne's  Hospital  742 

V.  Buckland  255 

V.  Bucknall  699,  746 

V.  Buller  336,  337 

t'.  Bunce  733 

V.  Burdett  739 

V.  Bushly  704 

V.  Butler  732 

V.  Caius  College  42,  276,  900,  901 

V.  Calvert  733 

V.  Carroll  724 

V.  Chester  701,  736,  741 

V.  Chesterfield  907 

V.  Christ  Church  725 

V.  Christ's  Hosp.  745,  865,  900 

V.  Clack              282,  283,  293,  474,  508 

V.  Clapham  733 

V.  Clare  Hall  743 

V.  Clarendon  42,  209,  742,  743 

r.  Clark  732 

V.  Clarke  698,  699 

V.  Clergy  Society  734,  748 

V.  Clifont  278 

V.  Clifton  733 

V.  Cock  701,  702 

V.  Columbine  724 

V.  Combe  730 

V.  Comber  699,  712 

V.  Coopers'  Co.  276,  725 

V.  Cordwainers'  Co.  725 

V.  Coventry  745 

V.  Cowper"  278 

V.  Craven  704,  724,  725 

V.  Crook  742 

V.  Cullum  696,  747 
V.  Cuming  278,  413,  414,  490,  888,  894 

V.  Dallgars  848 

V.  Paugers  903 

V.  Daugous  278 

V.  Dedham  School  742,  743 

V.  Dixie  725,  742 

V.  Dixon  441 

V.  Dodd  448 

V.  Downing          38,  248,  249,  694,  701, 
730,  736 

V.  Dovler  271,  273,  715,  721 

V.  Drapers'  Co.  725,  900,  901 

V.  Drummond  275,  733,  901 

V.  Dublin  694,  724 

V.  Dudlev  195,  230 

V.  Duley'  867 

V.  Duhvich  College  742 

V.  Dvson  283 

V.  Eastlake  478,  707 

V.  East  Retford  844,  900 

V.  Evart  Booming  Co.  732 
V.  Exeter     698,  733,  745,  855,  863,  809 
V.  Federal  St.  Meeting-House  710,  712, 
732,  734,  745,  800,  864 

V.  Fishmongers'  Co  718,  725,  745 

V.  Fletcher  721,  724,  729 

V.  Floyer  295,  414,  490 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


xxxm 


Att'v- 


Gen.  V.  Forster 

2-i,  384 

Foster 

74G 

Foundling  Hospital 

42,  742,  816 

Gal  way 

725,  746 

Garrison 

732,  734,  748 

Gascoigne 

725 

Gaunt 

742 

Geary 

477 

Gibson 

724 

Gill 

380,  730 

Gladstone              701 

,  702,  721,  731 

Glasgow  College 

724,  725,  733 

Gleg          19,  408,  414 

699,  721,  733 

Glyn 

724,  725,  729 

Goldsmiths'  Co. 

733 

Gould 

733 

Goulding 

725,  729 

Green 

724,  730 

Greenhill 

383 

Greenhouse 

847 

Grocers'  Co. 

746,  747 

Guardians  of  Poor 

478 

Guise 

724,  725,  729 

Haberdashers'  Co. 

119,  156,  710, 

712,  725,  746 

Hall 

113,  116,  736 

Hamilton 

769 

Hartley 

735,  746,  747 

Heelis                23, 384 

704,  707,  885 

Heiner 

732 

Herrick 

729 

Hewer 

710 

Hickman 

249,  701,  702 

Hicks 

724,  725 

Higham 

440 

Hobart 

900 

Holland 

419 

Hotham 

699 

Hungerford 

737 

Hurst 

726, 903  a 

Hutton 

734 

Ironmongers'  Co.   42, 

699,  723.  724, 

725,  729 

Jackson 

710,  729,  746 

Jeanes 

732,  740 

Johnson 

699 

Jolly  701, 724, 726,  728 

,730,731,748 

Kell 

692,  733,  747 

Kerr 

737 

Landerfield 

42 

Lawes          701,  702,  724,  725,  903  a 

Leeds 

325 

Leicester 

246,  846,  907 

Lepine 

741 

Litchfield 

295,  414,  490 

Liverpool 

816 

LlandafE 

725 

Locke 

414,  694,  742 

London  276,  282,  701, 

724,  725,  729, 

741,  894 

Londsdale 

700,  704 

JLigdalen  College 

742,  800 

Manners 

480 

Mansfield 

696,  733,  735 

Marchant 

725 

Att'y-Gen.  v.  Mathews  699,  719,  729 

v.  Mercers'  Co.  747 

r.  Merchant  Tailors'  Co.  747 

V.  Merrimack  Manuf.  Co.  732 

V.  Middleton  694,  724,  732,  742,  740 
V.  Minshull  724,  725 

r.  Monro  432,  734,  745,  747,  803 

I'.  .Moor's  Ex'rs  747 

V.  Moore  476  a,  694,  733,  742, 748,  800, 

928 
V.  Moseley  511 

V.  Murdoch  733,  734 

V.  Newark  737 

V.  Newbury  Corp.  875 

V.  Newcombe  23,  384 

V.  Newman  695,  724 

c.  Northnmberland  699 

I'.  Norwich  478,  890,  910,  915 

V.  Oakaver  701 

V.  Oglander  729,  730,  746 

V.  Old  South  Society        699,  743,  745, 

748 
V.  Owen  484 

V.  Oxford  724,  720 

V.  Painters'  Co.  699 

V.  Parker  701,  732,  746 

V.  Parnther  189,  190,  665 

V.  Payne  _  745 

V.  Peacock        "  699 

V.  Pearce  699.  720 

V.  Pearson,  275,  290,  702,  733,  734, 
746,  915 
V.  Fitter  451 

V.  Piatt  693,  730,  733 

V.  Poulden  151,  395,  397 

V.  Power  718,  726 

V.  Price  256,  698,  699 

V.  Pvle  724 

V.  Ranee  699,  729 

V.  Randell  416,  417,  443 

V.  Ref.  Prot.  Dutch  Church  745 

V.  Rochester  425,  733,  734,  745 

V.  Ruper  701 

V.  Rve  739 

V.  St.  Cross  Hospital  742 

V.  St.  John's  Hospital  42,  727,  745 
V.  Sands  3,  64,  327,  434 

t?.  Scott  19,  301,  304,  323,  408,  409, 
413,  490,  745 


V.  Margaret  &  Regius  Prof.  Cam- 
bridge 7(J(),  733 
r.  Master  of  Catharine  Hall    725,  742, 

745 
VOL.    I.  —  C 


Shearman 

413 

Sherborne  School 

733 

Shore 

275, 

287,  733 

Shrewsbury 

23. 

384.  707 

Skinners'  Co. 

694, 

725.  745 

Smart 

732,  746 

Sollv 

468 

Sothen 

192 

South  Molton 

725 

Speed 

699 

Stafford 

42 

Stamford 

278,  748 

Stephens 

249, 

282,  283 

Stepney 

701 

Sturge 

741 

Syderfin 

719, 

724,  729 

Tancred 

694 

Todd 

718 

Town  send 

694 

Trinity  Church 

699, 

725,  746 

XXXIV 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Att'y-Gen.  v.  Utica  Ins.  Co.  42 

V.  Vifjor  511  c 

V.  Vint  699,  718,  724,  729 

V.  Vivian  701,  733,  746,  747 

V.  Wallace  694,  701,  728,  748 

V.  Wansay  730 

V.  Warren  737,  740 

V.  Warrick  724 

V.  Wax  Chandlers'  Co.  725,  744 

V.  Weymouth  IGO 

f.  Wharwood  42,  700,  729,  732 

V.  Wiiitechurch  709,  724 

V.  Whitele3'  732,  746 

V.  Wilkinson  668,  698,  699,  733 

V.  William  and  Mary  Coll.  735 

V.  Williams  700,  709 

V.  Wilson     31,  161,  848,  875,  879,  900 

V.  Winchelsea  287 

V.  Windsor  157,  745 

V.  Winsor  725 

V.  Wisbert  725 

V.  WyviUe  888 

V.  York  742 

Atwater  v.  Perkins  511  6 

V.  Russell  83 

Atwaters  v.  Burt  784 

Atwood  V.  Small  171 

V.  Vincent  232 

Aubrey  v.  Brown  636 

V.  Middleton  570 

Aubuchon  v.  Bender  1(»4 

V.  Lory  414 

Auby  V.  Doyl  121 

Augusta  V.  Walton  277 

Aultman  v.  Bishop  60 

Austin  V.  Austin  275,  649 

V.  Bank  of  England  242 

V.  Bell  591,  592,  593 

V.  Brown  64,  131,  140 

V.  Halsev  569 

V.  Hatch  790 

r.  Johnson  591 

V.  Martin  273,  804 

V.  Munro  526 

V.  Shaw  411 

V.  Taylor  298,  357,  359,  372 

V.  Wilson  810 

Australian  &c.  Co.  v.  Mounsey       486,  754 

Aveline  v.  Melhuish  851 

Aveling  v.  Knipe  133,  130 

AveriU  r.  Loucks  590,602/ 

Averv  v.  Avery  277,  428 

V.  Griffin  48 

V.  Osborne  900 

V.  Tyrinfjham  734 

Avison  v.  Holmes  388 

Awdley  v.  Awdley  611 

Aycenena  v.  Peries  843 

Ayer  v.  Aver  310 

V.  Bangor  43 

Aylesford  v.  Morris  188 

AVliffe  V.  Murray  195,  347,  904 

Avisworth  V.  Whitcomb  104 

Aylward  v.  Keame  200,  230 

V.  Lewis  279 

Ayniar  v.  Roff  603 

Aynsworth  v.  Pratchett  615 

Ayres  v.  Methodist  Church  45,  748 

V.  Ward  270 


B. 


Baal  V.  Morgher 

647 

Babb  V.  lieed 

705,  710 

Babbitt  v.  Babbitt 

117, 

248,  275 

Babcock  v.  Case 

179 

V.  Hubbard 

426 

Baber,  lie 

593 

Back  V.  Andrew 

144,  146 

V.  Gooch 

587 

Backhouse  v.  Middleton 

581,  828 

Bacon  r.  Bacon 

404, 

409,  417 

V.  Bronson 

173 

V.  Devinney 

147 

V.  Mclntire 

856 

V.  Proctor 

380,  896 

t).  Ransom 

114 

V.  Rives 

863 

V.  Taylor 

299 

Bacon's  App. 

304 

311,  359 

Bacon's  Will  In  re 

327 

Bacot  V.  Hayward 

440,  481 

Baddam,  Ex  parte 

555 

Badger  v.  Badger 

862,  869 

Badiiam  v.  Mee 

15 

118,  784 

Btegle  V.  Wenlz 

171, 

172,  215 

Baer  ».  Pfaff 

678 

Baer's  Appeal 

443 

Bagenal  v.  Bage 

584 

Baggett  V.  Meux 

647,  671 

Baggot  V.  Baggot 

900 

Bagley  v.  Kennedy 

329 

Bagot,  In  re 

329 

V.  Bagot 

276 

Bagshaw  v.  Newton 

903  a 

V.  Spencer  305,  315,  358,  359,  366,  371 

V.  Winter  636,  645 

Bahin  v.  Hughes  420  a,  669,  848 

Bailey  v.  ^itna  Ins.  Co.  199,  602  bb 

V.  Bailey  93,  245,  289 

V.  Brown  500 

V.  Cdlton  815  c 

V.  Ekins  260 

V.  Elkins  802 

V.  Gould  898,  902 

V.  Harris  75 

V.  Hawkins  371 

V.  Hemenway  127 

V.  Hollister  331 

V.  Inglee  838,  877 

V.  Irwin  86 

V.  Jackson  654,  658 

V.  Lloj'd  511  c 

V.  Merritt  602  Jf 

V.  Pearson  661,  675,  680 

V.  Robinson  205,  602  v 

V.  Stiles  183 

V.  Watkins  206,  209 

V.  Wilson  217 

V.  Winn  166 

V.  Young  440 

Bailey,  Petitioner  502 

Baillie  v.  Treharne  678 

Bain  v.  Buff  114 

V.  Lescher  648 

Bainbridge  v.  Ashburton  337 

V.  Blair      275,  279,  282,  4.32,  818,  820, 

885,  895,  904 

Bainbrigge  v.  Browne  201 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


XXXV 


Baines  v.  Dixon 

V.  McGeo 
Baird  v.  Hall 
Baird's  Appeal 
Baker  v.  Harney 

V.  Bartlett 

V.  Biddle 

V.  Bliss 

V.  Bradley 

V.  Brown 

V.  Carter 

V.  Crookshank 

r.  Disbrow 

V.  Dumaresque 

V.  Dutton 

V.  Evans 

V.  Foster 

V.  Gregory 

V.  Hull 

V.  Hathaway 

V.  Hollabaugh 

V.  Leathers 

V.  Lee 

V.  Lorillard 

V.  McAden 

V.  Monk 

V.  Moseley 

V.  Paine 

V.  Read 

V.  Reel 

r.  S.  &  W.  Mo.  R.  Co 

V.  Smith 

V.  Sutton 

V.  Tibbetts 

V.  Tucker 

V.  Updike 


581 

205,  225 

451) 

344 

G72 

22:i 

843,  855 

225,  814 

201,  670 

815  n 

658,  849,  900 

598 

4CG,  84;{ 

72 

701 

98 

202 

684 

639 

685 

84 

143,  144,  147 

293 

610 

920 

189 

112 

220 

205,  229 

118,  121 

129 

724,  748 

705 

246 

201 

237 


V.  Vining 

V.  Washington 

V.  Whiting 

V.  Wind 
Bakewell  v.  Ogden 
Balbeck  v.  Donaldson 
Balch  V.  Hallett 
Balchen  v.  Scott 


126,  132,  137,  139 

330 
803,  864 
226 
783 
162 
545 
261,  262,  402 


Balckow  V.  Heme  Bay  Pier  Co.  752 

Baldridge  v.  Walton       602  g,  602  p,  602  i, 

602  u 

Baldwin  t'.  Allison  195,  602  7i 

V.  Baldwin  626 

V.  Bannister  243,  431 

V.  Campfield  131,  164 

V.  Humphrey  95,  343 

V.  Johnston  127 

V.  Porter  262 

V.  Tuttle  861 

Baldy  r.  Brady  559 

r.  Hunter  468 

Bale  V.  Coleman  357,  359,  360 

Bales  V.  Perry  402,  409 

Balfe  V.  Lord  761 

Balford  v.  Crane  147 

Balfour  v.  Welland   593,  596,  597,  793,  794 

Balguey  v.  Hamilton  835 

Ball  u.  Alexander  748 

V.  Ball  440 

V.  Coutts  633,  636 

V.  Harris  597,  768,  802,  809 

V.  Maurice  189 

V.  Montgomery  213,  632,  633,  634,  901 


Ballard  v.  Carter  336 

V.  Tavlor  647 

Ballew  I'.CIark  35 

Ballin  v.  Merchants'  Exchange  Bank     242 

Ballou,  Pet'r  282 

Balls  V.  Strutt  520,  816 

Halsh  V.  Hyham  485,  909,  915 

lialteel  p.  Plumer  254 

IJaltimore  r.  Caldwell  195 

Baltimore  Ins.  Co.  v.  Dalrvmyle  199 

Baltimore  S.  D.  Co.  v.  SutVo  499 

Bamliaugh  v.  Bambaugh  610 

Baiiipton  V.  Birchall  862 

Bancroft  v.  Ashhurst  602  bb,  603  h 

V.  Cousen  127,  814 

V.  Lepieur  920 

V.  Russell  137 

Bangor  v.  Beal  454,  828 

Hangs  V.  Smith  337 

Banister  r.  McKenzie  460 

Bank  v.  Benning  602  a<x 

V.  Campbell  239 

V.  Guttschlick  60266 

V.  Loonev  790 

V.  Macy '  199 

V.  Morrow  503 

V.  Pavne  222 

V.  Rutland  72 

V.  Simonton  127 

V.  Tvrrcll  202 

V.  Weeks  526 

Bank  Com'rs  v.  B'k  of  Buffalo  207 

Bank  of  America  v.  Pollock  127,  128,  135 

Bank  of  England  v.  Lunn  242 

V.  Moffat  242 

V.  Parsons  242 

Bank  of  Mobile  v.  Clark  591 

Bank  of  Orleans  v.  Torrey  205,  206 

Bank  of  Republic  v.  Baxter  179 

Bank  of  Turkey  v.  Ottoman  Co.  827 

Bank  of  U.  S.  v.  Beverley  308,  559, 

571,  576 

V.  Biddle  229,  230 

t'.  Carrington  75,  126 

V.  Daniels  855 

V.  Davis  222 

V.  Hirst  918 

V.  Housman  162 

V.  Huth  588,  593 

Bank  of  Virginia  v.  Adams  72 

V.  Clegg  610 

V.  Craig  242 

Bank  of  Wellsborough  v.  Bache  247  a 

Banks  v.  Booth  750 

V.  Judah  206 

V.  Le  Despencer  390 

V.  Mav  97 

V.  Phelan  730,  748 

V.  Sutton  323 

V.  Wilkes  415,  421 

Baptist  Assoc,  v.  Hart        46,  693,  724,  748 

Baptist  Soc.  V.  Ilazen         17,  299,  312,  328 

Barber,  Ex  parte  338 

V.  Barber,  In  re  56 

V.  Barber  169,  212,  862 

I'.  Bowen  195 

V.  Carv  784 

V.  Slade  639,  640 

Barbin  v.  Gasford  137 


XXXVl 


INDEX   TO   CASES  CITED. 
[References  are  to  sections.] 


Barbour  v.  Johnson 

127 

Barclay  i'.  Goodloe 

858 

V.  Maskelyne 

699,  700 

V.  Kussell" 

327 

V.  VVainwright 

544,  545 

Barcroft  v.  Murphy 

800 

Bardstown,  &c.  11.  R.  Co.  v 

Metcalfe 

754,  756 

Bardswell  v.  Bardswell 

112 

113,  115 

Bardwell  v.  Bardwell 

572 

Barford  i'.  Street 

655 

Barger's  Appeal 

554 

Barger  v.  IJarger 

133 

145,  166 

Baring,  Re 

477 

Barker,  In  re 

331,  460 

V.  Barker                    127, 

401 

812,  843 

V.  Devonshire 

795 

V.  Frye 

82 

V.  Furlong 

330 

V.  Hall 

586 

589,  591 

V.  Hill 

231 

V.  Greenwood             305 

306 

307,  312 

V.  Ins.  Co. 

206 

V.  Laney 

891 

V.  May 

17 

V.  McAuley 

456 

V.  Peile 

282 

V.  Richardson 

330,  520 

V.  Woods 

645,  748 

Barker's  Estate 

453 

Barkley  v.  Dosser 

329 

V.  Lane 

226 

V.  Reay 

819 

V.  Tapp 

327 

Barksdale  v.  Finney 

428,  836 

Barksworth  v.  Young 

82,  84 

Barlow  v.  Barlow 

147 

V.  Devany 

646 

V.  Grant                       119, 

615, 

618,  915 

V.  Heneage 

103 

Barnaby  v.  Griffin 

361 

Barnard  v.  Adams 

727,  894 

V.  Bagshaw 

418 

V.  Duncan 

780.  786 

V.  Hunter 

202,  831 

V.  Jewett 

333 

V.  Minshull 

112 

Barnardiston  v.  Lingwood 

188 

V.  Soame 

17 

Barnes  v.  Addy 

246,  846 

V.  Dow 

827  « 

V.  Gay 

324 

V.  Grant 

112, 

117,  120 

V.  Kirkland 

272 

V.  McChristie 

222 

V.  Pearson 

641 

V.  Robinson 

634 

V.  Taj'lor 

150,  855 

Barnett  i\  Bamett ' 

855 

V.  Clarke 

388 

V.  Dougherty 

75 

V.  Lichtenstein 

660 

V.  Spratt 

187 

Barnett's  Appeal 

299, 

305,  311 

Barney,  In  re 

246,  265 

v'  Arnold 

378 

V.  Douglas 

438 

V.  Griffin 

590 

V.  Saunders  453,  462,  463, 

468, 

470,  918 

Barnhart  v.  Greenshields 
Barnsley  v.  Powell  171, 

Bamum  v.  Baltimore 

V.  Barnum 

V,  Hampstead 
Barnwall  v.  Barn  wall 
Barnwell  v.  Cawdor 
Barr  v.  Cubbage 

V.  Weld 
Barr's  Trusts 
Barrack  v.  McCulloch 
Barratt  v.  Wyatt 
Barrel  1  v.  Joy 

V.  Han  rick 
Barrett  v.  Brown 

V.  Buck 

V.  Buxton 

V.  French 

V.  Hartley 

V.  Marsh 

V.  Rcids 

V.  Whitney 
Barrett's  Succession 
Barrilieau  v.  Brant 
Barrings  v.  Willing 
Barrinpton  v.  Liddell 

I'.  Tristram 
Barrington's  Estate 
Barroilhet  v.  Anspacher 
BarroU  v.  Foreman 
Barron  v.  Barron        82,  127,  137, 
629,  633,  634,  635, 
647, 

V.  Greenbough 

V.  Wadkin  64, 

Barrs  v.  Fewke 
Barry  v.  Hill 

V.  Ley 

V.  Marriott 

V.  Merchants'  Exchange  Co. 

V.  Missouri,  K.  &  T.  Ry.  Co. 

V.  Woodham 
Barrymore  v.  Ellis 
Barstow  v.  Kilvington 
Barter  v.  Wheeler 
Barth  v.  Koetting 
Bartle  v.  Wilkins 
Bartlett  v.  Bartlett  149,  162,  602  b, 

V.  Downes 

V.  Gage 

V.  Gouge 

V.  Green 

V.  Janeway 

V.  Johnson 

V.  King  701,  709, 

V.  Nye 

V.  Pickersgill  76,  126, 


V.  Remington 
V.  Salmon 
V.  Southerland 
Bartlett,  Petitioner 
Bartley  v.  Bartley 
Bartol's  Estate 
Barton  v.  Barton 
V.  Briscoe 
V.  IMagruder 
V.  Tunnell 
Barton's  Estate 


140,  459,  465, 


226 

,  182,  480 

43 

383 

590 

871,  872 

566 

828 

478 

438 

664,  665 

543 

79,82 

226 

873,  875 

150 

191 

299 

429,  904 

115,  119 

592 

202 

443 

136 

404 

397,  584 

903  a 

452,  477 

126 

415 

627,  628, 

630,  639, 

654,  673 

181,  226 

327,  434 

152,  157 

245 

701 

457 

31 

875 

888 

670 

226 

761 

206 

891,  892 

680,  826 

352,  355 

602/ 

332 

363 

640 

747 

.  724,  748 

724,  748 

133,  135, 

137,  206 

82,  359 

171 

499 

705 

503,  807 

460,  468 

514,  516 

652,  653 

126 

414 

467,  918 


INDEX   TO   CASES   CITED. 
[References  arc  to  sections.] 


XXXVll 


Barton's  Trust 
Bartram  v.  VVliichcote 
Bartz  V.  I'aff 
Barwull  V.  Harwell 

V.  Parker 
Rarwick  v.  White 


545 
709 
82 
428,  8fW 
«()() 
82.S 


Basti.inbv.  Albertson  384,  724,  738,741,748 

Basford  v.  i'eirson  685 

Baskerville  v.  Baskerville  35!) 

Bass  V.  Scott  299,  310 

V.  Williams  8(iG 

Basset  v.  St.  Levan  448 

Bassett  v.  Fisher  602  ee 

V.  Granger  284 

r.  Nosworthy  218,  220 

V.  Spofford  128 

Bassil  V.  Lister  400 

Bastard  r.  Proby  371 

Basy  V.  Magrath  192 

Batchelor,  hi  re  627 

Bate  !•.  Hooper         439,  449,  467,  902,  932 

Bateman  v.  Bateman  308 

V.  Davis      453,  460,  467,  784,  849,  851 

V.  Faber  071 

V.  Hotchkin  390 

V,  Margerison  885 

V.  Ross  672 

Bates  V.  Bates  511  6 

V.  Coe  580 

V.  Dandy  633,  640,  041 

V.  Heard  183 

V.  Johnson  829 

f.  Kelly  126,  133,  828 

V.  Mackinley  544,  545 

V.  Norcross  241 

V.  Preble  801 

V.  Scales  419,  4G2,  408 

V.  State  201  a 

V.  Underbill  418,  458 

Bath  V.  Abney  325 

i".  Bradford  600,  764,  770,  915 

Bath  and  Montague's  Case  189,  509  b 

Bath  Gas  Light  Co.  v.  Claffy  21 

Bath  Savings  Inst'n  v.  Hathorn,  79,  82,  103 

Batho,  In  re.  58 

Bathurst  v.  Murray  630 

Baton  V.  Jacks  509  c 

Batteley  v.  Windle  158 

Battinger  v.  Biidenbecker  60 

Baud  V.  Fardell  455,  407 

Bauerman  v.  Kadenius  330 

Baugh  r.  Price  187 

V.  Reed  903  a 

Baum  V.  Grigsby  232,  237,  238 

Baunigartner  v.  "Guesstield  126,  132 

Bawtree  v.  Watson  J  88 

Baxter  v.  Costin  205,  428 

V.  Wheeler  591 

Bayard  v.  Colefax  602  na,  602  dd 

V.  Farmers',  &c.  Bank  225,  242,  814 

Baver  v.  Cockerill  299 

Bayles  v.  Baxter               126,  137,  139,  215 

Bay  ley,  In  re  357 

V.  Boulcott  75,  77,  86,  97 

V.  Cumming  273,  502 

V.  Greenlea?  232,  233,  234,  239 

V.  Mansett  277,  287 

V.  Powell  900 

r.  Williams  194 


Baylies  v.  Ba3'lies  329 

V.  Payson  17,  82 

Baylis  v.  Newton  147,  151 

V.  Staats  275 

Baylor  r.  H<.pf  126 

Baynard  v.  Woolley  418,  848,  884,  931 

Bayne  v.  Crowther  118 

V.  Wylie  592 

Bazemore  v.  Davis  836 

Heable  v.  Dodd  652 

Beach  v.  Beach  17,  328,  330,  353,  520,  672 

V.  Dyer  171,  172 

V.  Fulton  Bank  600 

Beaches  v.  Dorwin  843 

Bead  more  v.  Gregory  889 

Beal  V.  Beal  584 

V.  Burchstead  72 

V.  Harman  610 

V.  Svmonds  435 

V.  Warren  104,  108,  685 

Beale  v.  Coon  330 

Beales  v.  Spencer  649 

Bcail  V.  Fox  724 

Beals  V.  Lee  189 

Bean  v.  Bridgers  145 

V.  Simpson  438 

Bear  v.  Bear  677 

V.  Koenigstein  126 

V.  Whistler  232 

Beard  r.  (,'ampbell  184 

V.  Kimball  586 

V.  Nutthall  111,  367 

V.  Stanton  865 

V.  Westcott  379 

Bearden  v.  White  66 

Beanlslev  v.  Ontario  Bank  759 

Beasley  v.  Magrath  613,  618 

V.  Wilkinson  339,  494 

Beatson  v.  Beatson  102.  105 

Beattie  v.  Butler    602^,  602  ^,  602  r,  602  a; 

V.  Davis  591 

V,  Johnston  877 

Beatty  v.  Clark  199,  475,  490 

V.  Knowler  44 

V.  Kurtz  748 

V.  Marine  Ins.  Co.  44 

Beaubien  v.  Poupard  205 

Beauclerk  v.  Ashburnham  509 

Beaudrv  v.  Montreal  869 

Beaufort  v.  Collier  646,  647,  653 

Beauland  v.  Bradley  194 

V.  Halliwell  550 

Beaumont  r.  Boultbee  178,  863 

V.  Bramlev  186 

V.  IMeredith  827 

r.  Oliveira  704 

V.  Salisbury  317,  319 

Beavan  v.  Oxford  438 

Beaver  v.  Beaver  82,  225 

V.  Filson  730 

Beck  V.  Graybill  126, 133 

V.  Pierce  658 

Beck's  Appeal  926 

Becker's  Estate  448,  449 

Beckett  i*.  Allison  76 

V.  Cordley  53 

Beckford  i'.  Beckford  144 

V.  Close  862 

V.  Kenible  72 


XXXVlll 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 
228,  855,  863,  865 


Beckford  v.  Wade 

Beckley  v.  Newland 

Beckwith  v.  Union  Bank  438 

V.  St.  Philip's  Parish      701,  732,  735  a 
Beddoe,  In  re  898 

Bcd.ioes  V.  Pugh  433,  926 

Bedell  v.  Scoggins  79 

Bedford  v.  Abercorn  375 

V.  Bedford  700 

V.  Woodman  811 

Bedford's  Appeal  380 

Charity  282,  697,  742 

Bedilian  v.  Seaton  182 

Bedingfeld  and  Herring's  Contract, 

In  re 
Bedwell  v.  Froome 
Beebe  v.  De  Baum 
Beech  v.  Keep 

V.  Vincent 
Beecher  v.  Major 

V.  Wilson 
Beech ing  v.  Morphew 
Beekman  v.  Bonsor 

V.  Hendrickson 

V.  People 
Beeman  v.  Beeman 
Beer  v.  Tapp 


773 

144 

602p,  602c?rf,  782 

98,  100,  101 

584 

130,  139 

147 

654 

259,  384,  402,  743 

104 

748 

143 

899 

Beer's  Goods  264 

Beere  v.  Beere  122 

V.  Hoffmister  511  a 

Beery  v.  Trick  456 

Beeson  v.  Beeson     195,  205,  207,  209,  428, 

850,  853 

Beevor  v.  Partridge  119 

Begbie  v.  Crook  270,  273 

Belch  V.  Harvey  855 

Belcher  v.  Belcher  191 

V.  Parsons  411,  914 

V.  Saunders  172 

Belchier,  Ex  parte  404,  406,  409,  411.  416, 

421,441,443,779 

Belknap  v.  Belknap  279,  919 

V.  Scalev  186 

Bell  V.  Bell  627,  631,  632,  639,  645,  828,  863 


V.  Goodnature 

V.  Hallenback 

V.  Henderson 

V.  Hyde 

V.  Kellar 

V.  Phyn 

V.  Scamnion 

V.  Stewart 

V.  Turner 

V.  Webb 
Bell's  Estate 
Bellamy,  Re 

V.  Bellamy 

V.  Burrow 

V.  Sabine 
Bellas  V.  McCarthy 
Bellasis  v.  Compton 
Bellinger,  In  re 
Bellington  v.  Shaffer 
Bellington's  Appeal 
Bellow  V.  Russell 
Bellows  V.  Partridge 
Belmont  v.  Obrien 
Belote  V.  White 
Beloved  Wilkes  Charity,  Re 


169 

149 

175 

48 

660 

380 

299 

145 

902 

205,  299 

918 

656 

428 

82 

172 

211 

75,  77,  83,  86,  139 

511  6,  552 

606 

458 

202 

590,  600 

288,  294,  414 

858 

511a 


Belt  V.  Ferguson 

213 

Beman  v.  KafEord 

757 

Bemis  v.  Call 

684 

Benbore  v.  Davies 

901 

Benbow  v.  Moore 

145,  448 

V.  Townsend 

75,  77,  86,  139 

Bench  v.  Biles 

569,  570 

Bendall  v.  Bendall 

894,  918 

Bender  v.  Reynolds 

649,  651 

Bendy,  In  re 

841 

Bendyshe,  In  re 

630 

Benedict  v.  Moore 

166 

V.  Webb 

5116 

Benee,  In  re 

382 

Benett  v.  Wj'ndhara 

744,914 

Benford  v.  Daniels 

918 

Benger  v.  Drew 

137, 144 

Bengough  v.  Edridge 

379,  390 

Benhani  v.  Rowe 

602  « 

Benjamin  v.  Gill 

433 

Benlow  v.  Townsend 

98 

Benn  v.  Dixon 

449 

451,  547 

Benneson  v.  Savage 

248 

Rennet  v.  Davis    38,  51 

,  121,  277, 

322,  324 

Bennett,  Ex  parte 

197 

207,  209 

Bennett,  In  re 

477,  554 

V.  Atkins 

892,  901 

V.  Austin 

245 

V.  Bennett 

147,  827  a 

V.  Biddle 

636,  899 

V.  Brundage 

602  M 

V.  Colley    467,  532, 

534,  535, 

851,  863, 
867 

V.  Denniston 

602  s 

V,  Dillingham 

627 

632,  639 

V.  Foster 

885 

V.  Fulmer 

77 

V.  Going 

892,  901 

V.  Hayter 

714,  729 

V.  Honeywoo 

256, 

276,  282 

V.  Hutson 

126 

V.  Judson 

172,  173 

V.  Lowe 

380 

V.  Lytton 

924 

V.  Mayhew 

837 

V.  Merriman 

185 

V.  Merritt 

813 

V.  Oliver 

636 

V.  Preston 

843 

V.  Robinson 

514 

V.  Union  Bank 

590,  602  d 

V.  Vade 

171 

,  182, 189 

V.  Whitehead 

871 

Bennett's  Estate 

917 

Bennington  Iron  Co.  v. 

Isham 

757 

Benscotter  v.  Green 

95 

Bensell  v.  Chancellor 

189 

Benson  v.  Benson 

260,  653 

V.  Bruce 

918 

V.  Hawthorne 

207 

V.  Heathara 

206 

V.  Whittam 

117,  119 

Bensusan  v.  Nehemias 

852 

Bent  V.  Priest 

128 

Bentham  v.  Hincourt 

243 

V.  Smith 

254 

V.  Wiltshire 

501.  803 

Bentley.  In  re 

329 

V,  Craven 

427,  430 

niDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


XXXIX 


Bentley  v.  TMackay 

82,  90 

Bickford  v.  Bickford 

79 

v.l'helps 

226 

Bickham  v.  Cruttwell 

671 

V.  Slircve 

408 

V.  Smith 

900 

Benton,  /«  re 

671 

Bick  ley  v.  Guest 

765 

Hcnvoi/.e  V.  Cooper 

8;i8 

Bicknell  v.  Field 

72 

UcMizicn  ('.  Lenvir 

217 

V.  Gouch 

861 

Berdiard  v.  Scott 

731 

Biddle  V.  Perkins 

506 

Berdoe  r.  Dawson 

291 

Biddies  v.  Biddies 

117,  020 

Beresford,  Jn  re 

635 

Biheld  V.  Taylor 

673,  874 

V.  Armaf(h 

665 

Bigelow  V.  Cady 

382 

*.  Beresford 

845 

V.  Morang 

903  a 

V.  liobson 

636 

Bigler  v.  Walker 

602 1 

Bergen  v.  Bennett 

602  h,  002  t 

liigley  V.  Jones 

127 

V.  Hendull 

705 

Bignell,  Jn  re 

820 

Bergengren  v.  Aldrich 

329,  5-28 

Bignold's  Settlement,  fn  re 

292 

Berber  v.  Duff                            402,  770,  77!i 

Biibie  v.  Lumley 

184 

Berj^nian  ^\  Bogda 

500 

Bill  V.  Cureton 

104,  593 

Beringer  v.  Beringer 

J82 

V.  Kynaston 

541 

V.  I>utz 

124,  120 

Billing  r.  Brogden 

440 

Berkelej'  v.  King's  College 

09 

V.  Southee 

204,  210 

V.  Partington 

117 

Billingliam  i'.  Lawthea 

108 

V.  Kyder 

512,  517 

Billings  V.  Billings 

590 

V.  Swinburne 

118,  020 

V.  Clinton 

133 

Berkhanistead  School,  Ex  parti 

742 

Billingslea  v.  Moore 

272 

Berkin  v.  Marsh 

863 

Billingsley  r.  Crichett 

613 

Berkuieyer  i'.  Kellerman 

197 

r.  Matthew 

414 

Berniingiiam  v.  Wilcox 

848 

Billington's  Appeal 

607 

Bernard  v   Bongard 

132.  133 

Bills  V.  Bills 

114 

V.  Minshull 

112 

Bingham,  lie 

448 

Bernstein,  Re 

493 

V.  Bingham 

184 

Berrien  v.  Thomas 

783 

V.  Clanmoris 

270 

Berry  v.  Briant 

117,  118 

V.  Stewart 

158,  814 

V.  Hamilton 

511 

V.  Weiderwax 

757 

V.  Norris 

48,  80 

Bingham's  Appeal 

511c 

V.  Skinner 

602  A 

Binion  v.  Stone 

54,  145 

V.  Uslier 

244 

Binks  V.  Kokeby        597,  787 

792,  795,  796 

V.  W  led  man 

126,  145 

liinney  v.  Plumly 

330 

V.  Williamson 

276,  359 

Binsse  v.  Page 

432 

Berryhiil's  Appeal                     851,  912,  918 

Birch,  In  re 

518 

Bertiiold  v.  Holmes 

602? 

V.  Blagrave                103, 

147, 151,  105 

Bertie  v.  Falkland 

514 

V.  EUames 

217 

Berwick  r.  ^Murray 

468 

V.  Wade 

112,  258 

Besland  i\  Hewett 

239 

Birch's  Trustees,  In  re 

612 

Bessey  v.  Windham 

587 

Bircliall,  In  re 

264 

Besson  v.  Eveland 

145 

Bird  V.  Bird 

456 

Best  V.  Blackburn 

173 

V.  Graham 

863 

V.  Campbell 

141,  805 

V.  Hunsden 

516 

V.  Donmall 

619 

r.  Johnson 

386 

V.  Storr 

173 

V.  Maylniry 

117 

Bethea  r.  McColI 

612,615 

V.  Pograni 

668 

Bethune  v.  Dougherty 

250 

V.  Pickford 

382 

1'.  Kennedy 

451,  547 

V.  Stride 

5116 

Bettle  V.  Wilson 

673 

Bird's  Estate 

918 

Bett.s  V.  Betts 

678 

Birdsall  v.  Hewlett 

575,  903  a 

Betty  V.  Elliott 

357 

Birdwell  v.  (Jain 

195 

Beulali  Marble  Co.  v.  Mattice 

127 

Hirkett  v.  Ilibbert 

636 

Beurliaus  ?'.  Cole 

699 

Birkhamstead  School  Case 

725 

Bevan's  Trusts,  In  rc 

622 

Birkhead  r.  Edwards 

84 

Beverley  v.  Brooke 

818 

Birks  V.  Micklethwait 

848.  901 

Beverleys  r.  Miller 

403,  408 

Birley  v.  Birley 

511a 

Beverly's  Case 

191 

Birls  V.  Betty 

417,  848,  876 

Bhokii  V.  (Cleveland 

438 

Birmingham"  r.  Kirwin 

572 

Bibb  V.  Hunter 

80,  126 

V.  Lesan 

511a 

V.  McKinley 

639 

Birmingham  School,  In  re 

742 

V.  Pope 

680 

Biron  v.  Mount 

593 

V.  Smith 

97 

V.  Scott 

875 

Bibhy  V-  Thompson 

117 

Biscoe  r.  Jackson 

727 

Bick  V.  Matthews 

423 

V.  Kennedy 

657 

V.  Motley 

423 

V.  Perkins 

306,  307 

xl 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Bishop  V.  American  Preservers'  Co.         21 

V.  Curtis  327 

V.  Halcomb  438 

V.  McCellaiid  97 

V.  Talbot  216 

Bishop  Gore's  Charity  701,  714 

Bishop  of  Oxford  v.  Leighton  294 

Bissell  V.  Continental  Trust  Co.  280 

Bittenger  v.  Uailroad  Co.  589 

Bixler  v.  Taylor  260 

Bi/.zell  V.  McKinnon  482 


Black  V.  Black 

V.  Blakely 

V.  Creighton 

V.  Irwin 

V.  Ligon 

V.  McCaulay 

V.  Kay 
Blackburn  v.  Blackburn 

V.  Byne 
Blackburne,  Ex  parte 

V.  Edgeley 


79, 137 

918 

827 

402,  779 

528,  529,  538 

380 

546 

79 

612 

276,  504 

201 


V.  Gregsou  232,  236,  237,  239 

V.  Stables  359,  360,  366,  390 

Blackeley  v.  Holton  109 

Blacket  v.  Langlands  219 

Blackford  v.  Christian  189 

Blackie  v.  Clarke  172,  204 

Blacklev  v.  Fowler  199,  602  v 

Blacklow  V.  Laws  649,  783 

Blackmore  v.  Shelby  200 

Blackshear  v.  Burke  815  b 

Blackstone  v.  Henworth  Hospital  694 

Blackstone  Bank  v.  Davis  386,  386  a 

555,  652 

Blackville  ».  Ascott  511  6 

Blackwood  v.  Burrows  419,  453,  778,  851 

Blagden  v.  Ex  parte  626,  632 

Blagge  V.  Miles  511  c,  610 

Blagrave  v.  Blagrave  309,  312,  315 

V.  Hancock  376,  383,  390 

V.  Routh  202 

Blair  v.  Bass  137 

f.  Bromley  172,  236,  801 

V.  Nugent  863 

V.  Ormond  869 

V.  Owles  222 

Blaisdell  v.  Locke  99 

V.  Stevens  836 

Blake  v.  Allman  621 

V.  Blake  82,  918 

V.  Bunbury  329 

v.  Foster  856 

V.  Heyward  218 

V.  Hungerford  218 

V.  O'Reilly  549 

V.  Sanderson  709 

V.  Trader's  Nat'l  Bk.  229 

Blakeley  v.  Brady  98,  101 

Blakely,  Petitioner  460 

Blakeiiey  v.  Blakeney  117 

Blaker  v.  Cooper  672 

Blanchard,  Re  292 

V.  Moore  226 

V.  Tyler  221 

Blanchet  v.  Foster  213 

Bland  v.  Bland  113,  116,  160,  827  a 

v.  Dawes  337,  647 

V.  Fleeman  809 


Blandford  v.  Thackerell  379,  710 

Blanev  v.  Bianey  566 

Blann  iJ.  Bell  450,  451 

Blasdell  v.  Locke  98 

Hlatch  V.  Wilder  121,  501,  787 

Blatchford  v.  Woolley  658,  849 

Blauvelt,  Re  415,  453 

V.  Ackerman  429,  469,  918 

Bledsoe  v.  Games  232 

Bleeker  v.  Bingham  367 

Bleight  V.  Bank  499 

Blenkinsop  v.  Blenkinsop  213.  641 
Blennerhasset  v.  Day       228,  229,  230,  782, 

861,  867 

Blennon's  Estate  748 

Blevins  v.  Buch  573,  677,  802 

Biewitt  V.  Olin  246 

Blight  V.  Bank  218,  219,  239 

V.  Ewing  765 

V.  Schenck  404,  409,  591,  779 

Blin  V.  Pierce  58,  330 

Blindell  v.  Hagan  21 

Blinkhorne  v.  Feast  54,  153 

Bliss  V.  American  Bible  Society      701,  724, 

747,  748,  892,  903  a 

V.  Bridgewater  260 

V.  Matteson  207,  212 

V.  West  122 

Blithe's  Case  48,  489 

Blithman,  In  re  927 

Blodgett  V.  Hildreth  81,  162 

Blogg  V.  Johnson  468,  472 

Blois  V.  Hereford  636 

Blood  V.  Blood  299 

Bloodgood  V.  Bruen  785 

V.  Sears  186 

Bloom  V.  Rensselaer        602  d,  602  a;,  60266 

V.  Waldron  581,  768,  774 

Bloomar,  In  re  56 

Bloom  field  v.  Evre  245,  871 

V.  Stowe  Market  724 

Blound  V.  Bestland  639 

Blount  V.  Burrow  900 

V.  Carroway  602  g 

V.  Robeson  863 

Blue  V.  Everett  855 

V.  Marshall  482,  528 

V.  Patterson  182,  843,  803 

Blumenthal  v.  Brainard  702 

Blundell,  In  re  246,  702,  902 

Blunder  v.  Barker  201 

Blunt  V.  Blunt  72 

V.  Burrow  87 

Blvholder  v.  Gilson  75, 137 

Blvth  V.  Fladgate  846 

BoVrd  V.  Wilson  234 

Board  of  Ed.  v.  Bakewell  700 

Boardman  v.  Halliday  586,  590 

V.  Larrabee  347 

V.  Mossman  419 

V.  Willard  99 

Boards,  In  re  568 

Boaz  1'.  Boaz  275 

Boazman  v.  Johnson  585,  596,  597 

Bobb  V.  Bobb  162 

Bochlert  v.  McBride  770 

Boddington  v.  Castelli  345 

Boddv  V.  Dawes  616 

V.  Lefevre  244 


INDEX   TO   CASES   CITED. 
[References  are  to  aectious.] 


Boden  v.  Jaco 
Budmihan  v.  Iloskins 
Bodiiie  I'.  Edwards 

r.  Moore 
Bodley  v.  Goodrich 
Bodwell  V.  Nutter 
Boehl  V.  WadK.vmar 
Boehiii  I'.  Clark 


602/" 

24C,  81.3,  907 

142,  143 

602  bl),  W-2f 

5'JO 

82,  128 

n-i 

380 


Bujjai'dus  I'.  Trinity  Church  45 

Bogort  I'.  Ilertell  501,  7G8 

V.  Perry  1'32 

Boggs  V.  Varner  221,  222 

Bogle  V.  Bogle  276,  280,  <J()0 

Bohannon  t".  Strespley  803 

Bohm  V.  Hohin  171,  209,  226 

Bohlen's  Estate  248 

Bold  V.  Hutchinson  359,  301 

Bohrer  v.  Otterback  902 

Boies  V.  Benhain  237 

Bolin,  In  re  82 

Bolles  V.  State  Trust  Co.  13 

Bolin  V.  Head  ley  639 

Bolton  V.  Bolton  107,  108 

V.  Curre  848 

V.  Deane  871 

V.  Gardner  428 

V.  Jacks  498 

V.  Jeuks  7G5 

V.  Lambert  200 

V.  Mvers  451 

V.  Po'well  859 

V.  Stannard  805 

V.  Williams  658,  059 

Bomar  i'.  Mullins  836 

Bond,  /'xpiirte  615 

V.  Barksdale  225 

V.  Brown  228,  229 

V.  Hopkins  228,  855 

V.  :SIc Watty  890 

V.  Mooie  160 

V.  Nurse  17 

V.  Simmonds  637 

V.  Turner  918 

V.  Ziegler  225,  814 

Bondlicid  V.  Hassell  388 

Bondholders  of  York  and  Cumberland 

U.  K.  Co.,  In  re  753 

Bone  V.  Cook  417,  418 

V.  Pollard  136,  144 

Boney  v.  Hollingsworth  201 

Bonhain  v.  Newcomb  107 

Bonifaut  v.  Greenfield  270,  273,  499 

Bonitlion  v.  Hockmore  904 

Bonn  V.  Davant  918 

Bonner  v.  Bonner  573 

V.  Holland  828 

Bonney  v.  Ridgard    225,  228,  709,  809,  810, 

811,855,805 

Bonsall's  Appeal         458,  606,  607,  830,  842 

Bonser  r.  Kinnear  112,  258 

Book  r.  Justice  M.  Co.  127 

Booker  t'.  Anderson  187,  770 

Bool  V.  Wix  33 

Boon  r.  Barnes  239 

t'.  Murphy  237 

Boone  v.  Baines  220 

V.  Chiles       218,  219,  222,  229,  855,  803 

V.  Citizens'  Savings  Bk.  82 

Booram  v.  Wells  490,  771,  783 


Booth,  Lx  parte 
lie 

V.  Alington 
V.  Animerman 
V.  Baptist  Church 


xU 


402 

875 

254 

47 

729 

Booth      114,  262,  419,  454,  460,  407, 

508,  848,  849 

V.  Bristol  County  S.  Bank  82 

V.  Clark  70,  72 

V.  Field  315 

V.  McXair  690 

V.  Oakland  S.  Bank  82 

V.  Pur.-er  475 

V.  Sineath  613 

V.  Warrington  861 

V.  Wilkinson  443 

Bootle  V.  Bluudell  566,  708 

Boozer  v.  Teague  133 

Borden  v.  Sumner  592 

Boreham  r.  Bignall  476  a,  928 

Borel  V.  liobbins  709 

Bork  V.  Martin  131,  142,  299 

Borneman  v.  Sedlinger  87 

Borough     of    Hertford    v.    Poor    of 

Hertford  900 

Borst  V.  Corey  234 

Borum  i'.  King  98 

Bos  V.  Ewing  237 

Bosanquet  v.  Dashwood  192 

Boschette  v.  Power  820,  827 

Bosken  r.  Giles  647 

Boskerch  v.  Herrick  520 

Bosler's  Estate  910 

Bosom  r.  Stratham  88,  90,  93,  210 

Boss  V.  Goodsall  4G0 

Bostick  V.  Elliott  426 

V.  Wenton  254 

Bostleman  r.  Bostleman  120,  135 

Bostock  V.  Blakeney        475,  477,  552.  913 
V.  Floyer  402,  441,  444,  929 

Bostock's  Case  379 

Boston  V.  Boston  641 

Boston,  &c.  Co.  V.  Boston  761 

Boston  &  C.  S.  Co.  V.  Reed  166 

Bo.ston  Franklinite  Co.  r.  Condit  499 

Boston   Safe  Deposit  &  Trust   Co.  r 


Mixter 
Bostwick,  Matter  of 

V.  Atkins 

V.  Estate  of  Dickson 
Bosvil  V.  Brander 
Boswell  f.  Coaks 

V.  Cunningham 

V.  Dillon 

V.  Parker 
Boswtirth,  Iti  re 
Boteler  r.  Allington 
Bothen  v.  McColl 
Bothomly  v.  Fairfax 
Botsford,  Jn  re 

V.  Burr 

Bouch  V.  Sproule 
Boughton  r.  Boughton 

V.  James 

V.  Langley 
Bouldin  v.  Alexander 
Boultbee  r.  Stubhs 
Boulton,  Ex  parte 


782 
018 


780 
615,  017, 

200,  205 

803 

627,  633,  640 

195 

206 

359 

585 

910 

13,  321,  347,  520 

918 

600 

699 

126,  132.  133.  134, 

137,  139,  161 

545 

103,  104,  102 

160,  383,  393 

306 

277,  733 

210 

438 


xlii 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Boulton  V.  Beard 

901,  927 

Bourdillon  v.  Adair 

633 

Bourke,  In  re 

511a 

V.  Callanan 

133,  206 

Bourne  v.  Buckton 

397 

V,  Mole 

826,  827 

Bourset  v.  Savage 

334,  828 

Boustield  V.  Hodges 

780 

Bouve  V.  Cottle 

595 

Bovey  v.  Smith         217 

222,  521 

828,  830 

Bowden,  Jn  re, 

863 

V.  Bowden 

451 

V.  Laing 

117, 118 

V.  Parrish 

223 

Bowditch  V.  Andrew 

118,  920 

V.  Ayrault 

451 

V.  Bannelos 

280 

282,  297 

V.  Soltj'k 

899,  903  a 

Bowen,  In  re 

' 

384 

V.  Evans 

218,  230 

V.  Idley 

183 

V.  Lewis 

358 

V.  McKean 

127 

V.  Penny 

437  6 

Bowers  v.  Clark 

673 

V.  Heaf 

188 

V.  Keesecker 

324 

V.  Seeger 

404 

412,  415 

V.  Toronto 

207,  430 

Bowes,  Ex  parte 

336,  337 

V.  East  London 

484,  529, 

851,  872 

V.  Strathmore 

626,  913 

Bowie  V.  Berry 

324 

Bowker  v.  Bowker 

251 

V.  Pierce 

465,  918 

Bowlby  V.  Thunder 

112 

Bowler  v.  Curler 

162 

Bowles  V.  Bowles 

231 

V.  Drayton 

472 

V.  Orr 

72 

V.  Stewart 

851 

V.  Weeks 

277,  287 

Bowling  V.  Bowling 

632 

V.  Cobb 

918 

V.  Winslow 

632,  636 

Bowman  v.  Bates 

180 

V.  VV'athen 

756, 

757,  855 

Bowman's  Appeal 

607 

Bowra  v.  Wright 

54 

Boyce  v.  Corbally 

502 

V.  Grundy 

171 

V.  Hanning 

506 

V.  Stanton 

181 

Boycote  v.  Cotton 

584 

Boyd  V.  Boyd 

77,  137, 

415,  420, 

426 

861,  8(13 

V.  Cleghorn 

77 

V.  Gill 

875 

V.  Hawkins 

195 

917,  918 

V.  McClure 

127 

V.  McLean 

126,  137 

Boydell  v.  Gnlightly 

390 

Boyer  v.  Cockerell 

298 

V.  Decker 

277 

V.  Libey 

126 

Boyes  v.  Cook 

511c 

Boykin  v.  Ciples 

51,  240 

277,  647 

Boj'lan  V,  Deinzer 

166 

Boj'le  V.  Boyle 

114 

Boj-ne  V.  Crowther 

119 

Bojnton  v.  Brastow 

195 

"  V.  Dyer 

468 

V,  Housler 

172 

V.  Hubbard 

188 

V.  Rees 

218,  222 

V.  Richardson 

900 

Boys  V.  Boys 

451,  466 

Boyse  v.  Rossborough 

189 

Brabrook   v.   Boston   Five 

Cts. 

Sav. 

Bank  98,  99,  100 

Brace  v.  Ormond  903  a 

Bracken  v.  Beatty  451 

V.  Miller  218,  222 

Brackenburj'  v.  Brackenbury  103,  104, 165 
Brackenridge  v.  Holland  195,  205 


Bracket!  v.  Baum 

60266 

Bradford  v.  Beiheld          294 

344 

408,  494 

V.  Brownjohn 

196,  533 

V.  Burgess 

328 

V.  Greenway 

655,  660 

V.  Harper 

39 

«;.  King 

878 

V.  Marvin 

237 

V.  Jlonks 

408 

V.  Romney 

186 

Bradford  School  of  Industry, 

Re 

727 

Bradish  v.  Gibbs 

48,  367 

Bradley  v.  Chase 

185 

v.  Emerson 

6.54 

V.  Luce 

133,  843 

V.  McBride 

230 

V.  Peixoto 

386 

V.  Phil.  R.  R.  Co. 

602  c 

Bradlin  v.  Hord 

219,  2-22 

Bradner  v.  Falkner 

547 

Bradshaw  v.  Bradshaw 

414,  614 

V.  Ellis 

308,  765 

V,  Fane 

769 

V.  Skilbech 

380 

V.  Thompson 

714 

Bradstreet  v.  Butterfield 

282 

V.  Kinsella 

419  a 

Bradwell  v.  Catchpole 

416, 

419,  830 

V.  Weeks 

64 

Brady  v.  Dilley 

910 

V.  McKosker 

182 

Bragg  V.  Carter 

251 

V.  Paulk 

82 

Brainerd  v.  Dunning 

597 

Braman  v.  Oliver 

195 

V.  Stiles                     121,  386  a 

555,  765 

Branihall  v.  Ferris                 118,  386  a,  555 

Bramlet  v.  Bates 

380 

Bran  v.  Marlborough 

219 

Branch  v.  Griffin 

815  c 

V.  Ward 

656 

Brandeis  v.  Cochrane 

104,  346 

Brandenburg  v.  Thorndike 

920 

Brander  v.  Brander 

544,  545 

Brandon  v.  Aston 

388 

555,  619 

V.  Brandon 

347 

V.  Carter 

264,  277 

V.  Hogart 

468 

V.  Robinson 

386,  652 

V.  Woodthorpe 

633 

Brandt  v.  Gelston 

359 

Brandt's  Appeal 

569 

Brannin  v,  Brannia 

215 

INDEX    TO   CASES   CITED. 
[References  are  to  sections.  ] 


xliii 


Brashear  v.  Marcy  380 

V.  West  438,  585,  592,  b'Ji 

Brasier  r.  Hudson  7'J2 

lirassey  v.  Chalmers  493,  503,  709 

Bra.sswell  v.  Moreliead  541 

Brathwaite  v.  Bratbwaite  431 

Bratt  V.  Bratt  232 

Braunstein  v.  Lewis  671 

Brawley  v.  Catron  233,  235 

Braxton  v.  State  426 

Bray,  Ex  parte  910 

V.  West  270,  271 

Braybrooke  v.  Inskip  274,  336,  337, 

597,  801 

Brazelr.  Fair  127 

Brazer  v.  Clark  417,  420,  426 

Brazier  r.  Camp  907 

Breik  v.  Cole  212 

Bretkenridge  v.  Brooks  918 

V.  Ornisby  35,  189 

Bredenburg  v.  Bardin  248 

Bredin  v.  Kiiigland  918 

Breudon  v.  Breedon  582,  610,  793 

Breit  v.  Yeaton  828 

Brenan  v.  Boyne  357 

Breiidle  v.  (ierman  Kef.  Con.  734,  748 

Brennon's  Estate  710 

Brent  r.  Sandwich  734 

Brereton  r.  Brereton  507,  508,  510,  51 1 

Brest  r.  Offley  112 

Brett  V.  Cumberland  536 

V.  Forcer  635 

V.  Greewell  636 

Brettell,  Lx  parte  337 

Brevard  v.  Neely  602  e 

Brewer  r.  Boston  Theatre  242 

V.  IJrewer  386  a,  555 

V.  Hardy  299 

V.  Swirles  467,  669,  849 

V.  Vanardsdale  851 

V.  Winchester  602  h,  602  » 

Brewerton's  Case  693,  701 

Brewster  v.  Angel  288,  375,  767 

V.  Demarest  453 

V.  McCall  748 

t'.  Power  142 

V.  Striker  305,308,312,315 

Briant,  /n  re,  Poulter  v.  Shackel            027 

Brice  v.  Hrice  189,  201 

V.  Miller  053 

V.  Stokes    416,  418,  419,  421.  424,  400, 

467,  508,  589,  849 

Brickell  r.  Earley  137 

Bride  V.  Smyth  312 

Bridonbecker  v.  Lowell  127,  135 

Bridge  )■.  Beadon  438 

V.  Bridge        96,  98,  101,  102,  105,  108 

r.  Brown             477,  615,  618,  910,  913 

Bridger  v.  Rice  770 

Bridgers  v.  Howell  149 

Bridges  V.  Longman  708 

r.  Pleasants  701,  713,  730,  748 

V.  Wilkins  046 

V.  Wood  048 

Bridget  v.  Himes  884 

Bridirman.  Jn  re  275,  279,  292 

r.  (iill  246,  745,  859,  884 

r.  Green  71,104,189.211 

Brier,  Jn  re  813 


Brierley,  hi  re  295 

Briers  v.  Hackney  851 

Brigel  v.  Tug  liiver  Co.  903 

Briggs  V.  Davis  334 

V.  French  72 

V.Hartley  700,702,718 

V.  Hill  238 

V.  Light-boats  40.  41 

V.  Oxford  390,  540 

V.  Palmer  334 

V.  Penny  93,  112 

V.  Planters'  Bank  238 

t".  Terrell  757 

V.  Titus  681 

V.  Wilson  481 

Briggs  and  Spicer,  In  re  593 

Brigham  r.  Hendersoa  72 

I'.  Newton  202 

Bright  V.  Bright  109 

V.  Egerton  864 

V.  Knight  133 

V.  Larcher  570 

V.  Legerton  850 

V.  North  478,  915 

Brightwell  i'.  Jordan  815  6 

Brinckerhoff  v.  Lansing  602 e« 

Bringhurst  v.  Cuthbert  311 

Brinkerhoff  v.  Yanschoven  232 

Brinkley  v.  Willis  863,  872 

Bvinley  v.  Grou  547 

Brinsden  v.  Williams  846 

Brinton's  Estate  900 

Brisbane  v.  Stoughton  602  g,  602  bb 

Brisco  V.  Minah  C.  M.  Co.  234 

Briscoe  v.  Briscoe  361 

V.  Bronaugh  239 

V.  State  919 

Bristed  v.  Williams  242 

Bristol  V.  Hungerford  152 

('.  Whitton  737 

Bristow  V.  Bristow  699 

British  Museum  v.  White  704 

British  South  Africa  Co.  v.  Companhia 


de  Mo9ambique 
Brittle,  in  re 
Brittltbank  v.  Goodwin 
Britton  v.  Lewis 
V.  Twining 
Bro:id  V.  Bevan 
Broadhurst  v.  Balguy 


72 

671 
863 
768 
358 
112 
261,  417,  418,  419. 


199,  414, 


463, 466,  508,  509,  851 
Broadrup  v.  Woodman  85 

Broadway  Nat'l  Bk.  v.  Adams  827  a 

Brock  I'.  Barnes  202 

V.  Brock  79,  142,  226 

V.  Phillips  2->4 

Brock  lebank  r.  Johnson  118 

Brocksopp  V.  Barnes  904,  906,  910 

Brockway  Maiiuf.  Co.,  In  re  242 


Broder  v.  Coiiklin 
Broderick  r.  Broderick 
Brodie  r.  Barry 

V.  St.  Paul 
Brodley's  Ann. 
Brogden  v.  Walker 
Brokaw  r.  Brokaw 
Brome  v-  Berkeley 
Bromtield ,  A>  pa rte 

V.  W^'therley 


747 


195,  865 
171 

605,  818 

891,  892 
927 
189 
873 
578 

605,  611 
464 


xliv 


INDEX   TO    CASES   CITED. 
[References  are  to  sections.] 


Bromlev  v.  Holland  873,  878 

V.  kelley  460,  461,  467 

V.  Smith  885 

Brompton  v.  Barker  219 

Bronsoii  v.  Kinsie  602  c,  602  x 

V.  Strouse  '           706 

Brooke  v.  Berry  172,  187,  189,  206 

V.  Brooke  32,  112,  116,  248,  664 

V.  Bulkeley  217,  828 

V.  Ki:ig  122 

V.  Turner  511  c 

Brooke's  A])p.  82 

Brook  er  v.  Brooker  890 

Brookman  v.  Hales  157,  196 

Brooks  V.  Brooks  51,  843 

V.  Burt  878 

V.  Dent  127 

r.  Egbert  918  n 

V.  Fowle  133 

V.  Hatch  68 

V.  Jackson  917 

V.  Jones  312 

V.  Marbury  591,  593 

V.  Kaynokls  827  a 

Brookshank  i'.  Smith  857 

Broom  v.  Curry  540 

V.  Summers  734 

Broomfield,  Ex  parte  611 

Brophy  v.  Bellamy  612 

V.  Lawler  171 

Broswell  v.  Downs  348 

Brothers  v.  Brothers  602  iv 

V.  Porter  132,  136,  836 

Brotherton  v.  Hutt  222 

Brough  V.  Higgins  553 

Brougham  v.  Paulett  263,  908 

Broughton  v.  Brand  127 

V.  Broughton  432,  895,  904 

V.  James  662 

V.  Langlev  298 

Browell  v.  Reid  273,  818,  819 

Browers  v.  Fromm  748 

Brown,  Ex  parte  282 

In  re  498,  701,  730,  773 

V.  Addison  G.  Hospital  378 

V.  Alden  668 

V.  Anderson  760 

V.  Armistead  184,  500 

V.  Bamford  670 

V.  Bartie  602  i,  602  aa,  602  hb 

V.  Black  246  a 

V.  Blount  883 

V.  Bontee  347 

V.  Bradford  96,  216 

V.  Brown         77,  83,  93,  206,  212,  277, 

287,  315,  668,  672,  682 

V.  Bryant  358 

V.  Budd  28 

V.  Campbell  465 

V.  Carter  201 

V.  Casamajor  117,  612,  620 

1'.  Cave  133 

V.  Cavendish  98,  104,  593 

V.  Chambers  511  h 

V-  Cheney  126 

V.  Cherry  874 

V.  Clark  632,  633,  634,  636,  649 

V.  Concord  724,  748 

V.  Cowell  195 


Brown  v.  Cross 
V.  De  Tastet 
V.  Dewey 
V.  Doane 
V.  Dysinger 
V.  East 
V.  Elton 
I'.  French 
V.  Gellaty 
V.  Gilman 
V.  Groombridge 
V.  Guthrie 
V.  Heathcote 
V.  Hicks 


467,  850,  869 
430,  454,  470,  906 
2-26 
245 
215 
231 
627 
456 
551 
237 
908 
141 
239 
556  a 


V.  Higgs  68, 112,  160,  248,  249,  251, 256, 
257,  258,  272,  507,  508,  714 

V.  Hobson  499,  500 

».  How  900 

V.  Hummell  742 

V.  Ingham  184 

v.  Johnson  648 

V.  Jones  151,  157,  158 

V.  Kelsey  263,  574,  748 

V.  Kemper  675 

V.  Kennedy  202 

V-  Knox  592 

V.  Lake  670 

V.  Lambert's  Adm'rs  846 

V.  I-amphear  186 

V.  Litton  457,  464,  906 

V.  Lockhart  880,  891,  892,  900 

V.  Lutheran  Church  734 

V.  Lynch  215 

V.  Lyon  592 

V.  McGill  671,  827  a 

V.  Meeting  St.  Baptist  Sec.      737,  743 

V.Meigs  254,498,511a 

V.  Mercantile  Trust  Co.  104 

V.  Miller  451 

V.  Minturn  593 

V.  Oakshott  823 

V.  Paull  118,  612,  620 

V.  Petnev  137 

V.  Phillips  252 
V.  Pocock    250,  251,  252,  258,  652,  671 

V.  Postall  661 

v.  Pring  185 

V.  Eamsden  305 

V.  Ricketts  429,  464,  468 

V.  Sansome  468,  472 

V.  Selwvn  244 

V.  Smith  615 

V.  Southhouse  464,  472 

V.  Stead  347 

V.  Stoughton  160,  393 

V.  Temperly  616 

V.  Vanlier  232,  239 

V.  "Whiteway  309,  312 

V.  Williamson  386  a 

V.  Wood  218 

V.  Wright  397,  455,  456,  459,  843 

V.  Yeall  713,  719 

Brown's  Case  610 

Estate  603 

Trusts  438,  668 

Will, /Ze  119 

Browne  v.  Stamp  137 

Browne's  Hospital,  Re  v.  Stamford        727 

Brownell  v.  Downs  259 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


xlv 


Brownell  r.  Stoddard  145 

Browuinfi  v.  Hart  590 

v.  Ileadley  627,  632,  633,  636,  639 

Brownlie  v.  Campbell  178 

Bruce  v.  Child  229,  2.iU 

v.  Presbytery,  &c.  698,  7IJ9 

V.  Roiiey  12G,  I'-io 

V.  Kuler  179 

Bruch  I'.  Laiitz  195,  205,  428,  598,  795,  853 

Bruderiell  r.  Bougbtoii  92,  570 

Brueu  r.  Gillet  415 

I',  lloiie  855 

Bruin  v.  Knott  613,  615 

Brunifield  r.  I'almer  238,  239 

Bruuimell  r.  IMcl'herson  01 

Bruniridge  v.  Bruniridf^e  417 

Brundage  i^.  Ciiene worth  96 

Bruiidy  v.  Maytield  127 

Brunei'.  Martyn  519 

Bruner  v.  First  Nat.  Bank  122 

Brunnenmayer  v.  Buhre  732.  742 

Brunsden  v'.  Wooldredge  255,  25<>,  H'Ji) 

Brunsen  v.  Hunter  112,  115 

Brunson  v.  Henrv  104,  145 

V.  Martin      '  252 

Brush  r.  Kinsley  2.38 

r.  Ware  224 

Bryan  r.  Bradley  2'J9 

V.  Brvan  G27 

V.  CoUins  393 

V.  Duncan  195,  649 

I'.  Howland  82 

V.  McNaughton  206 

V.  Weems  312 

Bryant,  In  re  248,  612 

V.  Craige  471 

V.  Hendricks  137,  226 

r.  Mansfield  165 

V.  Russell  594,  660,  914 

Brydges  v.  Brvdgea  357,  358,  540 

V.  Wotton  272 

Bryon  v.  Metropolitan,  &c.  Co.  752 

Bryson  r.  Nichols  100 

Buchanan  v.  Deshon  5') 

V.  Hamilton  30,  275,  282,  283 

V.  Harrison  13,  347 

V.  Hart  766 

V.  Matlock  183 

V.  Monroe  602  li 

Buck,  Jn  re  699,  730 

V.  Gibson  784 

V.  Paine  127 

V.  Pike  126,  1-33,  137 

V.  Swazey  132,  166,  244 

V.  Ullrich  127 

V.  Vorei3  212 

V.  Warren  132 

Buckels  V.  Carter  891 

Buckeridge  v.  Glasse      260,  275,  467,  835, 

849,  851 

Buckford  v.  Wade  141 

Backhaul  r.  Smith  910 

Buckintrham  v.  Clark  171 

V.  Morrison  915  a 

Buckintrhamshire  v.  Drury  34,  53 

V.  Hobart  348 

Auckland  V.  Pocknell  235,  230 

Buckles  V.  LaiTerty  205 

Buckley  v.  Buckley  570 


Buckley  v.  Frasier 

371 

17.  Howell 

774 

V.  Laiiauze 

196 

V.  Wells 

678 

Bucklin  v.  Bucklin 

341 

Buckner  v.  (Jaicott 

863 

Budd  V.  Basti 

232 

V.  Hiler 

275 

V.  Slate 

380 

Budge  r.  Gummon 

458 

Budgett  V.  Budgett 

401,  902 

Buei  V.  Buckingham 

195 

V.  Yeherton 

272 

Buerhaus  r.  iJe  Saussure 

465 

Buffalo  K.K.Co.D.Lamson  127,142,207,759 

Uul'falow  V.  Buffalow  189,  194,  203 

Buffington  I'.  Maxam  112,  131 

Buford  V.  Caldwell  172 

V.  M'Kce  109 

Bugden  v.  Tylee  822 

Bugg  V.  Franklin  638 

iiuggins  V.  Yates  112, 113,  116,  151 

Biilbv,  Ex  parte  051 

Bulkley  V.  I)e  Peyster  259 

V.  Redmond  183 

V.  Staats  815  6 

V.  Wilford  171,  178,  181,  182,  195 

Bull,  In  matter  of  499,  610 

V.  Bull         112,  251,  254,  255,  559,  748 

V.  Odell  873 

V.  Vardv  116,  248,  252 

Bullard  v.  Chandler  262,  699,  7-32 

Bulleiikainp  v.  Bullenkamp  142 

Bullin  i'.  Dillage  686 

Bullock,  lie  827  a 

V.  Knight  633 

V.  Mcnzies  634 

V.  Sadlier  220 

V.  Stones  379,  616,  622 

Bullowa  V.  Orgo  243 

Bul[)in  V.  Clark  652,  657 

Buingarner  v.  Coggswell  412,  501 

Bump  V.  Pratt  97 

Bunipus  V.  Platncr  218 

Bunburv  r.  Bunburv  71,  72 

Bui  ice  V.  Reed  602  r,  602  s,  602  t,  602  v 

Bundy  i\  Bundy  38 

V.  Monticello  828 

Bunn,  In  re  622 

V.  Winthrop  98, 103, 104, 109, 162,  307 

V. 331 

Bunner  v.  Storm  511,  783 

Bunnett  v.  Foster  885 

Biiiitin  V.  French  232,  237 

Burbank  r.  Burbank  732 

V.  Sweenej'  252 

V.  Whitney  46,  724,  748 

Burch  r.  Brcckenridge  659,  660 

Hurcliett  v.  Durdant  306 

Burden  r.  Burden  904,  906 

)'.  Sheridan  135 

Burdett  r.  Spilsbury  511  b 

V.  WiUet  835 

Burdick  f.  Garrick  468,  471 

!•.  Goddard  282,  503 

Burdon  r.  Burdon  665 

V.  Dean  632,  633,  635 

Buren  v.  Buren  127 

Burge  V.  Brutton  432.  910 


xlvi 


Burger  v.  Duff 

V.  Potter 
Burges  v.  Lamb 
Burgess  v.  Burgess 

V.  Fairbanks 

V.  Knapp 
Smith 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 

402 

540,  770 

272 

238 

763 

72 


V.  Wlieate  8,  15,  40,  64,  217,  232,  248, 
301,  321,  323,  325,  327,  357, 
427,  434.  747,  828,  891 


Burgoyne  v.  Fox 
Burgwyn  v.  Daniel 
Burham  r.  James 
Burke  v.  Adair 

V.  Chrisman 

V.  Gray 

V.  Jones 

V.  Roper 

V.  Tiiite 

V.  Valentine 
Burkett  V.  Wliittemore 
Burleigh  v.  Clough 
Burleson  v.  McDermott 
Burley  v.  Russell 
Burling  V.  Newlands 
Burlingame  v.  Robbins 
Burlington  Uni.  v.  Barrett 
Burmester  v.  Norris 
Burn  V.  Carvalho 
Burnaby  v.  Baillie 
Burnet  v.  Brundage 
Burnett  v.  Davis 

V.  Denniston 

V.  Kinnaston 

V.  Preston 
Burne}'  v.  McDonald 

V.  Spear 
Burnham  v.  Barth 

V.  Bennett 

V.  Dalling 
Bumly  V.  Evelyn 
Burns  v.  Allen 

V.  Ford 

V.  Taylor 
Bumside  v.  Wayinan 
Burr  V.  McEwen 

V.  Sherwood 

■17.  Sims 

V.  Smith 
Burr's  Ex'r 
Burrage,  Tn  re 
Burrill  v.  Boardman 


577,  785 

869 

863 

770 

238 

237 

600,  601 

710 

658 

119,  308 

511  c 

316 

223 

170 

77,  827  a 

239 

90 

486 

68,  105 

06 

782 

647 

602  q,  602  X,  602  bb 

641 

17 

64 

918 

828 

639 

900 

385 

568 

929 

235 

95 

526,  527,  780,  894,  910 

640 

308,  499,  769 

701,  724,  730,  748 

694 

248 

382,  730,  732,  748 


V.  Shell        411,  413,  417,  420,  460,  466 
Burritt  v.  Silliman  259 

Burrough  v.  Philcox         248,  250,  251,  2.58 


Burroughs  v.  De  Couts 
Burrows  v.  Alter 

V.  Gore 

r.  Greenwood 

V.  Lncke 

V.  Rapland 

V.  Walls 

V.  Williams 
Burrus  v.  Meadors 
Burson's  Appeal 
Burt  V.  Dennett 

V.  Freeman 

V.  Gamble 

V.  Gill 


104 
596 
863 
900 
171 
182 
467,  851 
821 
863 
676 
877 
800 
223 
472 


Burt  V.  Herron 

119 

V.  Sturt 

397,  584 

Burling  v.  Stonard 

809,  815 

Burton,  Ex  parte, 

246,  848 

V.  Cook 

119 

V.  Hastings 

361 

V.  Mount 

450,  451 

V.  Pierpont 

647 

V.  Wookey 

904 

Burton's  Appeal 

737 

Burtt  V.  Wilson 

232 

Burtt's  Est.,  Re 

340,  495 

Bury  V.  Oppenheim 

188,  201 

Bush  V.  Allen 

310 

V.  Bush                .219, 

221,  764, 

836,  877 

V.  Marshall 

232 

V.  Shearman 

197 

V.  Stamps 

602  jB 

V.  Stanley 

126 

Bush's  Appeal 

299,  901 

Bushby  v.  Munday 

72 

Bushell  V.  Bushell 

5116 

Bushnell  v.  Parsons 

118 

Bushong  V.  Taylor 

437  a,  437  b,  766 

Bust  V.  Wilson 

162 

Butcher  v.  Johnson 

509  a 

V.  Musgrove 

69 

Butcher,  Ex  parte 

332 

Butler,  In  re 

560 

V.  Bray 

414,  505 

V.  Butler 

454,  647, 

873,  878 

V.  Carter 

863 

V.  Dun  comb 

578 

579,  768 

V.  Gazzam 

5116 

V.  Godlej' 

347 

V.  Harrison  Land  Co. 

242 

t).  Haskell 

187 

V.  Hildreth 

596 

».  Hyland 

865 

V.  Ladue 

mgg 

V.  Merchants'  Ins.  Co.  58, 14^ 

,  146, 147 

V.  Portarlington 

82 

V.  Prendergast 

873,  878 

V.  Robertson 

680 

V.  Rutledge 

133 

V.  Trustees 

T20,  729 

V.  Van  Wyck 

591 

V.  Weeks 

166 

Butler  &  Baker's  Case 

270 

Butler's  Trusts,  In  re 

678 

Buttanshaw  v.  Martin 

520 

Butterbaugh's  App. 

554 

Butterfield,  Re 

83 

V.  Reed 

382 

Buttrick  v.  Holden 

814 

Butts  V.  Wood 

207 

Buxton  V.  Buxton 

439 

Bvam  V.  Bvam           294 

,  364,  503 

,  505,  807 

Byant  v.  Pickett 

918 

Bybee  v.  Thorp 

618 

Byers  v.  Danley 

139 

V.  Wacknian 

137 

Byington  v.  Moore 

206 

Byne  v.  Blackburn 

113 

,  117.  612 

Bynum  v.  Frederick 

678 

Byrchall  v.  Bradford 

263,  462, 

469,  574, 
844,  849 

Byrd  v.  Bradley 

590 

Byrne  v.  Frere 

857 

,  861,  86T 

INDEX   TO   CASES   CITED. 
[ReferenceB  are  to  sections.] 


xlvii 


Byrne  v.  Gunning 
V.  Norcott 
V.  Van  Iloesen 

Byron  i'.  liayner 


D-20 

463,  472,  'JOO 

G()8 

I'M 


c. 


Cadburv  v.  Duvall  559,  598,  795,  797 

Cado  I'.'Davis  1-27 

Cadcll  r.  I'almer  379,  :i8() 

V.  Wilcoi'ks  511  b 

Cadnian  v.  Horner  176 

Cadof^aii  V.  Essex  4<)() 

V.  Ewart  308,  315,  4'.)9 

1'.  Keniiett  542 

Cadwaladcr's  App.  195,  774 

Cadwell's  Hank,  Re  901 

Cafe  V.  Bent  293,  294,  450,  474,  508 

Caffev  1'.  MfMichael  018 

CafYrey  v.  Darby  438,  847,  900,  910 

Cage  I'.  Cassidy  72 

Caf^win  v.  Buerkle  131 

Caliill  V.  Cahill  647 

Calioun  V.  Robinson  2;i2 

Cain  f.  Cox  76 

Cairns  v.  Chaubert  547,  554,  918 

V.  ("olbura  147 

V.  Grant  IW 

Calais  Steamboat  Co.  v.  Van  Pelt  814 

Caldecott  v.  Brown  475,  477,  552,  913 

I'.  Caldecott  551 

Caldwell  V.  Brown  437  a,  783 

V.  I'aldwell  137 

V.  Carrington  217 

V.  Chapline  602  ^W 

V.  Fulton  76 

V.  Lowden  328 

«.  Williams  97, 109,  111,  .591 

Calhoun  v.  Burnett  223,  843 

V.  Calhoun  65.") 

V.  Ferguson  546,  547 

r.  King  818 

Calkins  r.  Ishell  60266,  602/ 

V.  Lock  wood  68 

V.  Long  672 

Call  i".  Ewiiig  421 

V.  Gibbons  188 

Callaghan  v.  Hall  891,  918 

Callahan  v.  Patterson  675 

Callender  v.  Calgrove  230 

V.  Kevstone  891 

Call  is  I'.  Folsom  8t;3 

Callow  t).  Howie  654,  657,  6.-)9 

Calloway  v.  Calloway  453 

V.  Wetherspoon  191 

Calmes,  Ex pnrte  458 

Calvert  v.  Eden  2!t9 

V.  Godfrey  605 

Calvin  v.  Currier  677 

Cahvell's  Ex'r  v.  Prindle's  Adm'r  476 

Cambridge  v.  Kous  160 

Camden  v.  Anderson  131 

V.  Bennett  126,  145 

V.  Benson  1 18 

f.  Vail  237.  685 

Cameron  r.  Irwin  602  J,  602  a- 

V.  Mason  232 

V.  Nelson  79 


Cameron  and  Wells,  Re  367 

Camp,  In  re  212 

Cauipati  r.  Campan  247  a 

Campbell  v.  Baldwin  2.32,  2.37 

V.  Campbell       126,  129,  228,  441,  456, 

554,  905 

V.  Carter  184 

V.  Day  438 

V.  Dearborn  226,  602  6 

V.  Drake  128,  135 

V.  First  Nat.  Bank  124 

V.  Foster  386  a 

V.  Foster  Ass'n  511  6 

V.  French  630 

V.  Graham  869 

V.  Hamilton  33U 

V.  Harding  380 

V.  Hooper  35 

V.   Home      476  a,  511  a,  901,  922,  928 

V.  Johnston  195,  205,  786 

V.  Kansas  City  727 

V.  Leach  530 

V.  McLain  209,  851 

V.  Miller  456,  914 

V.  Moulton  210 

V.  Prestons  321,  329 

V.  Kadner  741 

V.  Sheldon  93 

V.  Walker  128,  195,  197,  770,  869 

V.  Wallace  93 

V.  Williams  468 

Campbell's  Estate  109 

Trusts,  In  re  51 

Campden's  Charities,  Re  727 

Canal  Bank  v.  Cox  591,  592 

Can  by  v.  Lawson  367 

Candler  v.  TiUett       419,  421,  422,  424,  440 

Caiidv  V.  Marcy  186 

CaneV.  Allen  197,  202 

V.  Roberts  437 

Canev  v.  Bond  438.  440 

Cantield  v.  Bostwick  570,  918 

Cann  v.  Cann  185 

Cannel  v.  Buckle  34 

Canning  v.  Kensworthy  122 

Cannings  v.  Flower  616,  619 

V.  Hicks  13 

Cannon  v.  Handley  171 

Canoy  v.  Troutman  17,  328,  334 

Cant  lev.  In  re  338 

Cape  V.  Bent      284,  293,  294,  450,  474,  508 

V.  Cape  118,  647,  649 

Capehart  v.  Huey  891,  894 

Capel  V.  Wood  533 

Caperton  v.  Callson  891 

Capital  Nat.  Bank  v.  Coldwater  Nat. 

Bank  44 

Caplo  V.  McCollum  126 

(^aplin's  Will  510 

Caplingor  v.  Stokes  127,  200 

V.  Sullivan  633 

Capron  v.  Attleborough  Bank  199 

Cardigan  v.  Montague  530 

(^arc  V.  Ormond  821 

Carew  v.  .Fohnson  904 

Carew's  Case  178.  179 

Carey  r.  Brown  815  c 

V.  Callan  1.37 

V.  Goodinge  244 


xlviii 


INDEX    TO   CASES   CITED. 
[References  are  to  sections.] 


Carey  r'-  Kemper 

8156 

Carter  v.  Balfour               570 

724,  726,  748 

V.  Kawson 

22(J 

V.  Bank  of  Georgia 

239 

Carleton  v.  lia.uk 

627,  028 

V.  Bennett 

803 

V.  Dorset 

2ia 

V.  Bernadiston 

317 

Carley  r.  Graves 

8:J7 

r.  Carter    218,223,261, 

202,  627,  628, 

Carniichael  v.  Foster 

828 

633,  672, 

673,  676,  829 

V.  Huglies 

G15 

V.  Cutting 

424,  462,  408 

V.  Trustees 

43 

V.  Gibson 

82,  83 

V.  Wilson 

615,  OlS 

1'.  Home 

428,  431 

Came  v.  Lons; 

704,  712 

V.  McManus 

204 

Games  v.  Colburn 

102 

r.  Montgomery 

357 

v.  Ilulibard 

2;3'j 

V.  RoUand 

618 

V.  Polk 

783,  78(3  a 

V.  T.igt;art 

645 

Carney  v.  Byron 

520 

I'.  Ulilein 

805 

D.'Kain                259,312, 

315,  448,  920 

V.  Wolf 

748 

Carow  V.  Mo  watt 

8'Jl 

Carter  and  Kenderdine's  Contract,  In 

Carpenter,  lie 

277,  284 

re 

593 

V.  Am.  Ins.  Co 

171 

Carter  Bros.  v.  Challen 

126,  815  c 

V.  Cameron 

705 

Carteret  v.  Carteret 

351 

V.  Canal  Co. 

230,  8G3 

Cartledge  v.  Cutliff 

471 

V.  Carpenter 

441 

Ciirtmell  v.  Perkins 

863 

V.  Elliott 

1U2 

Cartwright,  Jn  i-e 

477 

V.  Heriot 

201 

V.  Pettus 

72 

V.  Leonard 

680 

V.  Wise 

143,  144, 147 

V.  Marnell 

58,  345 

Caruthers  v.  Williams 

133 

V.  Miller 

748 

Carver  v.  Bowles 

511a 

V.  Mitchell 

686 

I'.  Richards 

511a,  808 

Carpenter's  Appeal 

900 

Carver's  Estate 

408 

Estate 

181 

Carvill  v.  Carvill 

121 

Carr,  £x  parte 

171 

Carwardiue  v.  Carwardine 

298.  379 

V.  Atkinson 

254 

Gary  v.  Abbott 

718,  724.  729 

V.  Bedford 

256,  510 

V.  Cary 

112,  116 

V.  Bob 

803 

V.  Eyre 

217 

V.  Burlington 

585,  597,  600 

V.  Mansfield 

200 

V.  Eastabrook 

633 

V.  Whitney 

328 

V.  Ellison 

326 

Cary  Library  v.  Bliss 

700.  727 

V.  Erroll 

373 

Casaday  v.  Bosler 

602  ee 

V.  Halliday 

35 

Casborn  v.  English 

322 

V.  Hertz 

411 

Casborne  v.  Scarfe 

324,  336 

V.  Hilton 

225,  814,  801 

Casburne  v.  Casburne 

323 

V.  Hobbs 

232 

Case  V.  Codding 

126,  132 

V.  Houser 

209 

V.  Gerrish 

212,  591 

V.  Laird 

468 

V.  Green 

671 

V.  Living 

117,  118 

V.  James 

217 

V.  Richardson 

299 

V.  Kelly 

477,  915  a 

V.  Taylor                    627, 

632,  635,  640 

Casey  v.  Wiggin 

640 

Carr,  petitioner 

5116 

Casey's  Estate 

891 

Carrick  v.  Errington 

160 

Caspari  v.  Cutcheon 

460 

Carrier's  Appeal 

918  n 

Cass  V.  Cass 

552 

Carrigan  v.  Drake 

520 

V.  Stearns 

891 

Carrington  v.  Abbott 

559 

Cassamajor  v.  Pearson 

550 

V.  Goddin 

602  an 

Cassard  v.  Hinman 

172 

Carritt  v.  Real  &  P.  A.  Co. 

849 

Cassell,  Ex  parte 

910,914 

Carroll  v.  Connett 

880 

V.  Ryss 

782,  783 

V.  Farmers'  Bank 

72 

Cassell's' Appeal 

748 

V.  Lee 

647 

Cassidy  v.  Hynton 

507 

V.  Moore 

918 

v.'McDaiiiel 

881 

V.  Renick 

361 

Castle  V.  Castle 

118,  620 

V.  Shea 

252 

Caswell  r.  Sheen 

56 

V.  Stewart 

501 

Cater  v.  Eveleigh 

601,  675 

V.  Van  Renselaer 

232 

Cater' s  Trust 

922,  925 

Carroll  Iron  Co.  v.  Maclaren 

72 

Cathcart  v.  Nelson 

82,  163 

Carruth  v.  Carruth 

264 

Cathorpe,  F.x  pnrte 

457 

Carruthers  v.  Carruthers 

404 

Catlin  r.  Eagle  Bank 

31,  588 

Carsey  v.  Barshaw 

416 

Caton  V.  Caton 

208 

Carson  v.  Carson        66,  250 

254,  2R2,  511 

V.  Pembroke 

239,  837 

V.  Murray 

672,  673 

V.  Rideout 

665 

V.  O'Bannon 

644 

Cattlin  V.  Brown 

385 

Carter  v.  Abshire 

774 

Caul  field  v.  Maguire 

554 

INDKX   TO   CASES    CITP:D, 
[References  are  to  Bections.] 


xlix 


Cavagnaro  i'.  Don  129 

Cave  V.  Cave  34 

Caveiider  r.  Cavender  275 

Cavendish  V.  Fleming  018 

I'.  Mercer  616,  01 'J 

Caverly  v.  I'UWp  87;{ 

Cavin  v.  Gieason  44,  828 

Cawood  r.  Tlmnipson  15'J 
Cecil  V.  Butcher        103,  104,  105, 161,  1G2, 

1(15 

Cecil  Bank  v.  Snivelv  120 

Cecil  Xat.  Bank  r.  fiiurber  122 

Central  Bridge  v.  Baily  754 

Chadwii-k  v.  Chadwick  82 


V.  Heat  ley 

922,  925 

Chadwin,  /\x  parte 

574 

Chaffe  r.  Watts 

650 

Chatfees  r.  Ui>k 

58'..' 

Challiii  V.  Hull 

200 

Chahoon  r.  Hollenback 

330 

Cliaigneau  v.  Bryan 

260 

Chaires  v.  Brady 

187 

Chalfant  v.  Williams 

220 

Challen  r.  Shippam 

402,  403 

Chalmers  v.  Bradley 

228, 

230, 

274,  287, 

401 

803,  807 

V.  Hack 

72 

Chamberlain  v.  Agar 

84 

181,  210 

V.  Brackett 

728,  7;i7 

V.  Chamberlain 

181 

182, 

741,  748 

V.  Crane 

29'J 

V.  Dummer 

540 

V.  Maynes 

328 

V.  Stearns 

711,  712 

t'.  Taylor 

705 

r.  Temple 

165 

V.  Thompson 

305 

312, 

315,  318 

Chambers,  Ex  parte 

616, 

017,  618 

V.  Atkins 

117 

V.  Caulfield 

672 

V.  Chambers 

362, 

451,  856 

V.  Crabbe 

851 

V.  Emery 

137 

V.  Goldwin 

615 

V.  Goodwin 

905 

V.  Tlowell 

430 

V.  Kerns 

462 

V.  Manchester,  &c. 

Ry. 

752 

V.  Mauldin 

330 

V.  Minchin 

402, 

404, 

411,416, 

419 

421,  423 

V.  Perry 
t'.  St.  Louis 

631 

694, 

699.  724 

V.  Smith 

827  a 

V.  Taylor 

312 

Chambersburg  Ins.  Co. 

V.  Smith 

520 

Chamness  v.  Crutchfield 

220 

Champion,  In  re 

100.  848 

V.  Brown 

232,  239 

V.  Kigby 

202, 

228,  229 

V.  Smith 

099 

Cham  pi  in  v.  Champlin 

124, 

13.3,  142. 

169, 

672,  783 

f.  Haight 

810 

?'.  Laytin 

171 

Chance  r.  MoWharter 

232,  239 

Chancellor,  In  re 

547 

v.  Windham 

299 

Chandler,  In  re 

846 

VOL.   I.  —  d 

Chandler  r.  Hill  600 

Chandos  v.  Brownlow  230 

V.  Talbot  641 

Chanet  v.  Villeponteaux  499 

Chancy  f.  May  885 

V.  Smallwood  245 

Chapin  r.  Holyoke  Young  Men's  Ch. 
Ass'n  729 

V.  School  District        45,  730,  744,  748 

V.  Universalist  Society  17.  299, 


V.  Vermont,  &c.  Railway 

f.  Weed 

petitioner 
Chaplin,  Kx parte 

V.  Chaiilin 

V.  Givcns 

V.  McAfee 

V.  Mdore 

V.  Young 
Chapman,  /n  re 

V.  Beardsley 

V.  Blissett 

V.  Butler 

V.  Chapman 

V.  Foster 

V.  Gibson 

V.  Gray 

V.  Kimball 

V.  Tanner 

V.  "Wilbur 
Charity  Corp.  r.  Sutton 
Charles  v.  Burke 
Dubois 


Charlton  v.  Durham 

I'.  Low 

V.  Kendall 
Charter  v.  Trevelyan 
Chase  v.  Chapin 

V.  Chase 

V.  Lockerman 


305.  328 

758,  701 

21)9 

448 

461 

151,  165,  323 

261,  262,  264,  208,  914 

120 

012 

430 

465,  848,  910 

232,  235 

298,  305,  312 

855 

419 

686 

108 

672 

277 

232,  239 

77 

402,  879,  904 

104 

428 


421 

218 

375 

923 

86,  99 

70,  71,  112,  117,  118, 

380  fl,  623 

243,  402.  408,  562, 

565,  566,  571,  918 

V.  Palmer  627 

V.  Parker  602 Jf 

V.  Perley  79 

V.  Roberts  843 

V.  Stockett  91 

V.  Van  Meter  347 

V.  York  C.  S.  Bank  827  n 

Chassaing  v.  Parsonage  636 

Chastain  v.  Smith  127 

Chastcauncuf  r.  Capeyron  67 

Chathatr.  v.  Audley  905 

V.  Brainard  748 

Chattanooga,  &c.  R.  Co.  v.  Evans  242 

Chauncy  r.  Graydon  515 

Chauve'te  v.  ^lason  678 

Chawner's  Will,  In  re  708 

Cheatham  v.  Rowland  477 

Chedworfh  v.  Edwards     446,  835,  837,  863 

Cheek  v.  Watson  171 

Cheever  i'.  Wilson  084 

(^helmsford's  Case  694 

Chencry  v.  Davis  440 

Chenev  v.  Watkina  299 

Cheney's  Case  701 

Cherry  r.  Greene  5116,  764,  795 

ffJarratt  918 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Cherry  v.  Mott  72-t,  726 

Chertsey  Market,  In  re  419,  742,  745, 

770,  816,  848,  849,  875 

Cheshire  v.  Cheshire  544,  8;J6 

V.  Payne  213 

Cheslev  v.  Ciiesley  770 

Cheslyii  v.  Dalby  202 

Chesson  v.  Ciiesson  554 

Ciiester  v.  Grier  I'J^ 

V.  Pratt  658 

V.  Kolfe  480,487,915 

Chesterfield  v.  Janssen     167,  169,  171,  185, 

187,  189,194,  195,  212,851 

Chestnut   St.  Nat.   Bank    v.  Fidelity 

Ins.  Co.  104 

Chew  V.  Beall  060 

V.  Chew  308,  511 

Chew's  Appeal  827 

Chibnal  v.  Whitton  993 

Chicago,  &c.  R.  Co.  v.  Hay  803 

V.  Titterington  8(il 

Chicago  Att.  Co.  v.  Davis  S.  M.  Co.        82 

Chicago,  &c.  Land  Co.  v.  Peck        482 

Chidgev  v.  Harris  261 

Chilcott  V.  Hart  382 

Child  V.  Bruce  195 

V.  Child  453,  607 

V.  Gibson  464 

V.  Stephens  696,  597 

Childers  v.  Childers,  76,  82,  84,  131, 

151,  165,  220 

Childs  V.  Gramold  137 

V.  Jordon  86,  343 

V.  Wesleyan  Cem.  Ass'n  77 

V.  Woodson  75 

Chillingworth  v.  Chambers  848 

Chilton  V.  Braiden  232 

Cliion,  Ex  parte  835 

Chipchase  v.  Simpson  649,  651 

Chippendale,  Ex  parte  486,  907,  909 

Chishulm  v.  Chisholm  615,  616 

V.  Gadsden  171 

V.  Newton  330 

V.  Starke  541 

Chism  V.  Williams  380 

Chitwood  V.  Brittaia  84 

Choice  V.  Marshall  359 

Cholmeley  v.  Paxton  774,  776 

Cholmoiideley  tJ.  Cholmondelev  112 

V.  Clinton          228,  855,  856,  857,  805. 

807 

Chowning  v.  Cox  602  'hi 

Chrichton's  Trust  927 

Christ's  Church,  In  re  742 

V.  Trustees  701,  730 

Christ's  Coll.,  Cambridge  700,  739 

Christ's  Hospital  y.  Budgin  144, 149,  151 

V.  Diffenbach  226 

V.  Grainger  23,  384,  736 

V.  Hames  739 

Christian  v.  Foster  903  a 

V.  Yancey  261,  602  an 

Christie  v.  Bishop  221 

Christleri'.  Meddis  499 

Christopher  v.  Covington  590.  591 

Christophers  v.  White  432.  904 

Christy  V.  Courtnay  143,  146,  147 

V.  Flpmiugtoa  601 

V.  Pulliam  254 


Church  V.  Church  748 

V.  Cole  126 

V.  Ja(iues  27 

V.  Marine  Ins.  Co.  206 
V.  Ruland                    171,  181,  182,  222 

V.  Sterling  127 

V.  Stewart  328 

V.  Wood  127 
Church  of  Donington-on-Baine,  In  re  701 
Church  of  Latter  Day  Saints  v.  United 

States  727,  736 

Church  on  Brattle  St.  v.  Grant  736 

Churclier  v.  Martin  131 

Churchill  v.  Churchill  254 

V.  Corker  320 

V.  Dibben  604 

V.  Hobson  261,  402,  411,  416,  421 

V.  Marks  388,  555 

Chwatal  v.  Schreiner  371 

Citizens'  Nat.  Bank  v.  Jefferson  466 

Citv  Council  v.  Paige  218 

'  V.  Walton  277 

City  National  Bank  v.  Hamilton  127 

Clack  V.  Carlon  432 

V.  Holland  438,  440,  831,  845 

Cladfield  V.  Cox  438 

Clatlin  V.  Ambrose  124 

V.  Claflin  382,  386 

V.  Van  Wagoner  600 

Clagett  V.  Hall  76,  420 

Clairborne  v.  Henderson  324 

V.  Holland  466,  790 

Clairhorn  v.  Crockett  238 

Clamer  t'.  Rawlings  237 

Clanricaide  v.  Heuning  202,  850,  855 

Clapp  V.  Emery  86 

Clapper  v.  House  227 

Clapton  V.  Buhner  256 

Clare  v.  Bedford  53 

Clark  V.  Andersoa  453,  910 

V.  Beers  460 

V.  Burgh  633 

V.  Burnhara  140 

V.  Cantwell  129 

V.  Chamberlain  142 

V.  Clark     126.  132,  147,  248,  347,  417, 

418,  419,  423,  460,  547,  803 

V.  Cook  633 

V.  Cordis  482 

V.  Crego  341 

V.  Evorhart  174,  178 

V.  Flannery  554 

V.  Fuller  590 

V.  Garfield  453,  4.59 

V.  Girdwood  203 

V.  Hanev  171 

V.  Hilton  152 

V.  Holland  195 

V.  Hornthal  511  c 

V.  Hunt  237,  239 

V.  Jones  225,  766 

V.  Lee  206 

V.  McMahoa  122 

V.  Maguire  647 

V.  Makenna  647,  601 

V.  Mai  pus  189,  194 

V.  Marlow  568 

r.  Alartin  240  rt 

V.  Patterson  147,  658 


INDEX   TO   CASES    CITED. 
[References  are  to  sections.] 


li 


Clark  V.  Peatridge 

V.  Piatt 

V.  liiddle 

V.  lioyle 

r.  Sawyer 

V.  Seymour 

V.  Taylor 

r.  Teniiison 

F.  Timmons 

r.  Trflawney 

t'.  Vail  Surley 

V.  Ward 

f.  Washington  Corp. 

V.  Wilson 

0.  Wright 
Clark's  Appeal 

Estate 
Clarke,  In  re 

0.  Herkeley 

t).  Hlount 

V.  Boyce 

V.  Clarke 

V.  Danvers 

V.  Deveaux 

V.  Hackerthorne 

V.  Hart 

V,  Jenkins 

V.  Eott 

V.  JlcCreary 

V.  Moore 


220 

383,917,  '.H8 

7tiG 

236 

894 

773 

724,  726 

347 

126 

466 

610 

189 

757 

594 

8:28 

417,418 

468 

618 

513,  517 

421 

235 

171 

126,  144 

539,  816,  922 

217 

869 

421 

97 

639 

764 


V.  Parker    262,  413,  502,  507,  508,  511, 

514,517,  518,  519 

V.  Quackenboss  137 

V.  Royal  Panopticon  19,  768 

V.  Sawyer  182 

V.  Saxon  48,  50,  540,  541 

V.  State  420 

V.  Turner  257,  510 

V.  Windham  648,  652,  653 

Clarke's  Appeal  448,  520 

Trusts,  Jn  re  671 

Clarkson  r.  Clarkson  358,  545 

V.  Creely  770 

V.  De  Pevster  654 

V.  Hanwky  187,  189 

Clary,  In  re  454 

Claussen  r.  La  Franz  48,  126 

Clavering  v.  Clavering  103, 104,  162 

Clay  V.  Hart  499 

V.  Selah  V.  Ir.  Co.  248 

V.  Sharpe  602  c,  002  hh 

17.  Willis  602  c 

V.Wood  114 

Clavton  V.  Cagle  8.-)8 

Clayton  v.  Glengall  580,  584 

v.  Greshain  644,  545 

Cleaver  v.  Mutual  R.  F.  Life  Ass'n.        181 

Clegg  r.  I'dmondson  141,  196 

V.  P'ishwick  196 

V.  Rowland  528,  5.30 

Cleghorn  v.  Obernalte  145 

Cleland  v.  Clelan<l  635 

Clemens  v.  Caldwell  275,  276,  471 

V.  Clemens  273 

V.  Heckschor  790,  848 

Clemenston  v.  Williams  806 

Clement  i'.  Hyde  700 

Clemson  v.  David.'^on  63 

Clenestine's  Appeal  649 


Clenneil  r.  Lewthwaite 
Clerg's  .\p|Hal 
Clergy  Soeictv,  Jn  re 
Clerk  V.  Miller 
Clerkson  v.  liower 
Clermont  v.  Tasburgh 
Cler's  Case 
('leve's  Case 
Cleveland,  In  re 

r.  Iliill.tt 

V.  pollard 

t;.  State  Hank 
Cleveland's  Settled  Estates 
Clews  r.  .laniieson 
Click  V.  Click 
ClifTord  r.  Francis 
Clifton  I'.  Davis 

V.  Haig 

V.  Lorn  be 
Clinefetter  v.  Ayers 
Clinton  V.  Seymour 

V.  Willes 
Clippenger  r.  Hipbaugh 


Clive  V.  Carew 

V.  Clive 
Clogett  V.  Hill 
Cloud  V.  Bond 

I".  (Ireasley 

r.  Ivie 

V.  Martin 
Cloudslev  r.  Pelham 


94 
571 

724 

654 

13 

71,  176 

511  c 

161 

348 

312,  315,  320 

915 

769 

449 

206 

120 

729 

191 

55 

112 

562 

578 

658 

214 


719, 


654,  669,671,849 

544,  545 

826 

460 

72 

1.32 

118,  511 

112 


Clough  V.  Bond        402,  404,  409,  417,  419, 
440,  444,  453,  455,  402,  465,  847 


V.  Dixon 

I'.  Lambert 
Cloutman  v.  Bailey 
Cloyne  v.  Yound 
CI  u  low's  Trust 
Clute  r.  Bool 

I'.  Frasier 
Clutton,  Ex  parte 
Clyde  i".  Simpson 
Coape  V.  Arnold 
Coard  v.  Ilolderness 
Coate's  Appeal 
Coates  7\  Robinson 

V.  Williams 

I'.  Woodsworth 
Cobb  r.  Biddle 

V.  Edwards 

V.  Fant 

V.  Knight 

V.  Stewart 

V.  Trammell 
Cobb's  Estate 
Coburn  v.  Anderson 
Cochran  r.  Cochran 

r.  Paris 

V.  Richmond  &  A.  R.  Co, 

V.  Van  Surley 
Cock  I'.  Goodfellow 
Cockhurn  r.  Thompson 
Cockell  V.  Taylor 


Cocker  v.  Quayle 

Cockerell  r.  Barber 

V.  Cholnieley 
Cocking  I'.  Pratt 
Cocks  V.  Haviland 


417,  422,  444,  445 

672 

358 

157 

397 

118,  386  a 

195 

59,  277,  297 

794,  800 

358,  359,  369 

157 

113,  119 

655.  660 

591 

133 

765 

124 

917 

79,  86,  104,  816  a,  828 

246  a 

1.33 

448 

158 

554 

508,  511 

902,  910 

610 

453,  454 

815 

187  831 

45.3,  460,467,  509, '549, 

847 


272 

776.  851 

178,  184,  201 

848 


Hi 


Cocksodfje  v.  Cockscdge 
Coddriiitcton  v.  Foley 
Coder  I".  Haling 
Codnian  v.  Krell 
Codwise  V.  Gelstou 
Coe  V.  Bradley 


INDEX   TO    CASES    CITED. 
[References  are  to  sections.] 


672 
578,  570 

127 

72 

594,  596 

215 


V.  Columbus,  &c.  Railway      754,  756, 

759 

V.  Knox  County  Bank  759 

V.  McBrown  759 

V.  Peacock  754,  759 

V.  Peniiock  759 

V.  Washington  Mills  730 

Coe's  Trust  510 

Coffee  V.  Buffin  195 

Coffin  V.  Cooper  517 

V.  Fernvhough  196 

V.  Morrill  642 

Cofford  V.  Allen  848 

Cogbill  r.  Boyd  427,  452,  463.  471 

Coggeshall  v.  Pelton  697,  704,  748 

Cog'gswell  V.  Griffith  828 

Coggins  V.  FIvthe  280 

Cogswell  V.  Cogswell      227,  462,  468,  544, 

545,  552,  554,  826 

V.  Newburyport  S.  Inst'n  82 

Cohen  v.  Morris  602  ?» 

V.  Parish  145 

Coit  V.  Fougera  237 

Colburn  v.  Morton  195,  205 

Colchester  v.  Lowten  31 

Colcord  V.  Scamonds  238 

Coldwell  V.  Home  725 

Cole  V.  Cunningham  72 

V.  Gibbons  188 

V.  Gibson  214 

V.  Jessup  591 

V.  Lake  873 

V.  Littlefield  112, 117,  386  a 

V.  McNeill  213 

V.  Miles  225 

V.  Moffitt  602  21 

V.  Moore  828 

V.  Noble  865 

V.  Robins  191 

V.  Savage  602  ee 

V.  Scott  221,  232 

V.  Stokes  195.  428 

I'.  Turner  570 

V.  Wade         19.  20,  258,  273,  280,  294, 

344,  491,  496,  499,  503,  504,  508,  714,  721 

Cole's  Estate,  In  re  477,  526 

Colebrook's  Case  285 

Colegrave  v.  Manby  532,  534,  535 

Coleman,  In  re  555,  926 

V.  Bucks  &  Oxon  Union  Bank         122 

V.  Columbia  Oil  Co.  545,  556 

,        V.  Hatcher  559 

V.  McKinney  785 

V.  Parran  79 

V.  Ross  892 

V.  Woolley  655,  660 

Coles  V.  Forrest  873 

V.  Trecothick    183,  187,  188,  195,  199, 

206,  428 

Colesbury  v.  Dart  217,  768,  790 

Coleson  v.  Blanton  3-iO 

Colgate  V.  Colgate  205 

Col  lard  V.  Hare  228,  865 


Collard  V.  Sampson  511  c 

College  of  Charleston  v.  Wellington       919 

Collett  «.  Collett  903  a 

Collier  v.  Carey  432 

r.  Collier  226,  620 

V.  Fallon  69 

V.  Grimsey  499 

V.  Harkness  239 

V.  McBcan  308,  316,  358,  361,  829 

V.  Slaughter  514 

V.  Walter  315 

Collin  V.  Blackburn  616 

Collins,  Re  615 

V.  Carev  904 

V.  Carlyle  112,  251 

V.  Collins  166,  450 

V.  Corson  126,  133 

V.  Hopkins  602  A,  602  » 

V.  Hoxie  66,  891 

V.  Eavenburg  655,  660 

V.  McCarty  858,  869 

V.  Rainey  206 

V.  Rudolph  648 

V.  Serverson  816  b 

V.  Stocking  347 

V.  Sullivan  181 

V.  Townley  892 

V.  AVade  468 

V.  Wakeman  157 

r.  Wickwire  288 

V.  Will  511  c 

V.  Williamson  206 

Collinson  v.  CoUinson  146,  147 

V.  Lister  225,  455,  458,  810,  909 

V.  Patrick  98,  102 

Collinson's  Case  693,  704.  739 

Collis  V.  Collis  453,  826,  827 

V.  Robins  558 

Collister  v.  Fassitt  112 

Collomore  r.  Tyndall  319 

Coll3'er  v.  Burnett  741 

V.Collins  602  66 

Colman  ?'.  Lord  897 

V.  Lvne  2?8 

V.  S'arrel  97,  100,  108,  111,  367 

V.  Satterfield  678,  681 

Colmer  v.  Colmer  628,  634 

Colrane  v.  Worrel  456 

Colsten  V.  Chandos  493 

Colt  V.  Lasoriere  225 

Colton  V.  Colton  112,114 

Columbia  Bridge  Co.  v.  Kline  42 

Colvin  V.  Currier  645 

V.  Mennefee  866 

Colyer  v.  Finch  800,  802,  803 

Com.  V.  Nase  160 

Combe  v.  Brasier  733,  748 

V.  Combe  580 

V.  Hughes  397 

Combry  v.  McMichael  312,  318 

Comley  v.  Dazian  200 

Commeyer  v.  United  Ger.  Church  55 

Commissioner  of  Roads  v.  McPherson      43 

Commissioners  v.  Archibald  275 

V.  Pemsel  705 

Com'rs,  &c.  v.  Archbold  275,  276 

V.  De  Clifford  380,  736 

V.  Fornev  500 

V.  Johnson  452,  890  a 


INDEX   TO   CASKS   CITED. 


liii 


[References  are  to  aections.] 


Com'rs,  &;c.  v.  Mateer 

V.  Siillivuii 

t'.  Walker 

V.  Wybranta 
Comnioinvciillh  v.  Duffield 

V.  Martin 

V.  McAlister 

V.  Shelby 

V.  Smith 

r.  Stauffer 

V.  Tenth  Mass.  Turnp. 
Company  of  Pewterers  v.  Christ's 

pital 
Compton  V.  Barnes 

ti.  ('ollinson  48,  52, 

V.  0.xeiiden 
Conditt  V.  Klower 
Conant  v.  Wrif^ht 
Condit  V.  Maxwell  137, 

Condy  r.  Ailrian 

I'.  Campbell 
Cone  V-  Dunham 
Coni^.  Ciiurch  v.  Southwick 
Con^^r'l  Uiii.  Society  v.  Hale 
Conkey  v.  Dickinson 
Conklin  v.  Conklin 

V.  Davis 

V.  Egerton 
Conley  v.  Nailor 
Connah  v.  Sedgwick 
Conally  v.  Lyons 
Connecticut  "l^  Bradish 
Conn.  Milt.  Life  Ins.  Co.  v.  Smith 
Conn.  Kiver  S.  Bank  v.  Albee 
Connelly  v.  Wells 
Conningham  v.  Conningham   261, 

V.  Mellish  151, 

V.  Plunkett 
Connollv  v.  Connolly 

V.  I""'arrell 

V.  Howe 

V.  Keating 

V.  Pardon 

V.  Parsons 
Connor,  In  re 

V.  Follansbee 

V.  Lewis 

V.  New  Albany 

V.  Ogle 
Conolan  v.  Leyland 
Conover  v.  Beckett 

V.  StothofE 

V.  Warren 
Conoy  V.  Troutman 
Conrad  v.  Shomo 
Conroe  v.  Birdsall 
Conron  v.  Conron 
Conry  v.  Caullield  433, 

Consistory  i".  Brandon 
Constant  v.  Metteson 

V.  Schuyler 
Constantein  v.  Blache 
Consterdine  v.  Consterdine 


Coatee  v.  Dawson 
Converse  v.  Noyes 

V.  Sickles 
Conway,  Ex  parte 
V.  Alexander 
V.  Conway 


417,  420, 


270 

Conway  v.  Cutting 

82,  438 

699,  729 

V.  Kenton 

477 

■M,  .19 

V.  Green 

205 

802,  8.J1 

I'.  Keiisworthy 

82,  231 

51 1.' 

V.  Smith 

680 

64 

Conybeare's  Settlement, 

Ex  parte 

277,  297 

418 

Cood  V.  Cood 

71 

564 

V.  Pollard 

230 

756,  757 

Cook  V.  Addison 

447,  468 

514,  555 

V.  Arnhain 

862,  872 

757 

V.  Barr 

81 

Hos- 

V.  Bremr)nd 

147 

736 

V.  Bronaugh 

133,  221 

918 

r.  Burtchaell 

206 

672,  67;i 

V.  Cholmondeley 

427 

347,  348 

V.  Clayworth 

191 

585 

V.  Coliinridge 

454,  470 

280 

t'.  (y'ook 

215,  499 

223,  805 

V.  Crawford  273,  284 

,  230, 294, 

339,  340, 

541 

344, 

492,  494 

495,  502 

380 

V.  Dawson 

506, 

802,  803 

865 

v.  Dealy 

150 

411,  413 

V.  Dillon 

602 

i,  602  Jf 

730 

I'.  Duiikcnfield 

150, 

699,  729 

263,  572 

V.  Ellington 

112 

380 

I'.  Fountain 

104,  121 

162,  167 

69!J 

V.  French 

223 

500 

I'.  Fryer 

260 

66 

V.  Gardner 

920,  921 

590,  591 

V.  (iilmore 

910,  915  a 

437  rt 

V.  Gwavas 

152 

218 

r.  Husbands 

50 

861 

V.  Hutchinson 

150,  151, 

153,  158 

82,  163 

v.  Ingoldsby 

290 

875 

V.  Kennedy 

647 

262,  268 

V.  Lamotte 

104,  194, 

201,  210 

153,  158 

V.  Lawrence 

292 

100 

V.  Lowry 

23 

515 

V.  Nathan 

184 

117,118 

V.  Parsons 

476,  915 

236 

I'.  Sherman 

133, 195 

142 

V.  Soltan 

219,  352 

891 

V.  Stationers'  Co. 

152,  160 

770,  782 

V.  Tritnble 

232 

66 

V.  TuUis 

336,  831 

137 

V.  Wiggins 

672,  674 

133 

Cooke,  Re 

498 

328 

V.  Piatt 

111  a 

396,  612 

Cooksey  v.  Bryan 

137,  865 

646 

Cook  son  V.  Keay 

461 

8lbc 

V.  Richardson 

127,  187 

795 

Cool  V.  Jackman 

468 

233,  237 

Cooley  V.  Lobdell 

82 

Q02  an 

V.  Kankin 

191 

084 

V.  Scarlett 

71 

170 

Coombs  V.  Jordan 

598, 797,  798 

573 

V.  Read 

676 

863,  876 

Coon  V.  Brook 

660 

748 

Cooney  v.  Ryter 

82 

918 

Coonrod  v.  Coonrod 

475,  794 

87 

Coope  V.  Carter 

889,  890 

585 

Cooper,  In  re 

615 

417 

V.  Cartwright 

347 

466,  826 

V.  Cockrum 

126,  171 

124 

r.  Cooper 

254,  347 

516,  890 

166 

V.  Day 

275,  282 

588 

I".  Douglas 

480 

226 

V.  Haines 

253 

578 

V.  Kynock 

317 

319,  320 

Jiv 


INDEX   TO    CASES   CITED. 
[References  are  to  sectious.] 


Cooper  V.  Larocho 

671 

Cory  V.  Cory 

185 

191,  201 

V.  Martin 

25'1 

V.  Gertcken 

53,  024 

V.  McCluiu 

257 

Coryell  v.  Dunton 

511  c,  654 

V.  Keilly 

369 

V.  Klehni 

222,  347 

V.  Skeele 

137 

Coryton  v.  Ililyan 

7 

V.  Spottiswood 

236 

Cosser  V.  Kadfoid 

600 

V.  Stevens 

602  ce 

Costabadie  v.  Costabadie 

117,  511 

V.  Tliomason 

82 

Costeker  v.  llorrox 

827 

V.  Thorntoa 

117,  118,  024 

Coster  V.  Coster 

636 

V.  Whitney 

322,  .585 

V.  Griswold 

72,  187 

V.  Wyatt 

388,  555 

V.  Murray 

803 

Cooper's  Estate 

382 

Gotham  v.  West 

615 

CootL  V.  Jackson 

137 

Cottage  St.  M.  E.  Church  v. 

Kendall     729 

Cope  V.  Barry 

873 

Cottani  V.  E.  Counties  ii.  K. 

Co. 

410,  418 

V.  Clark 

849 

Cotteen  v.  Missing 

97,  102 

V.  Cope 

564 

Cotter  V.  Burchard 

843 

Copeland  v.  Ins.  Co. 

206 

Cotterel  v.  Hampson 

30 

V.  Summers 

104 

V.  Purchase 

226,  861 

Copeley  v.  O'Neil 

606 

Cotterell  v.  Long 

602  fi 

Copeman  v.  Gallant 

58 

Cotting  V.  De  Sartiges 

287 

Copis  V.  Middleton 

197 

Cottingham  v.  Shrewsbury 

876 

Coppage  V.  Barnett 

133 

Cottington  v.  Fletcher        82 

,  84, 

137,  151, 

Coppard  v.  Allen 

876 

152 

105,  216 

Copper  Mining  Co.  v.  Beach 

786 

Cottle  V.  Harrold 

126 

Coppertliwaite  v.  Tuite 

654 

Cottman  v.  Grace 

386 

700,  732 

Coppin  V.  Coppin 

236 

Cotton,  In  re 

615 

V.  Fernyhough 

533,  834 

V.  Clark 

898 

900,  902 

V.  Gray 

057 

V.  Cotton 

450,  547 

Copping  V.  Cooke 

243 

V.  King 

103 

Coquard  v.  National  Linseed  Oil  Co.        21 

V.  Penrose 

903  a 

Corbally  v.  Grainger 

605 

V.  Wood 

134,  137 

Corbett  v.  Barker 

856 

Cotton's  Trustees,  In  re 

272 

V.  Laurens 

552 

Cottrell  V.  Cottrell 

787 

V.  Maydwell 

578,  579 

V.  Hughes 

218,  354 

Corbin  v.  Wilson 

615,  616 

Cough  V.  Bcind 

914 

Corby  v.  Corby 

121 

Coulson  V.  Walton 

855 

Cordell's  Case 

217 

County  Att'y  v.  May 

724 

Corder  v.  Morgan 

602  c,  602  hb 

Course  v.  Humphrey 

888 

Cordwell  v.  Mackrill 

833,  834 

Court  V.  Jeffrey 

812,  881 

Corgell  V.  Dunton 

607 

V.  Eobarts 

472 

Corie  v.  Bertie 

694 

Courtenay  v,  Courtenay 

268 

280,  401 

Corkers  v.  Minons 

516 

V.  Taylor 

200 

Corley  v.  Corley 

627,  629 

Courtier,  In  re 

437  a,  477 

V.  Stafford 

202,  21)3 

Cousett  V.  Bell 

877,  907 

Corlies  v.  Corlies 

276,  4.59 

Cousin's  Estate 

457 

Cormerais  v.  Genella 

602  <ig 

Coutts  V.  Acworth 

104 

Cormickp.  Holbrook 

680 

Covar  V.  Cantelou 

874 

Corn  Exchange  v,  Babcock 

660 

Covenhoven  i,'.  Shuler 

541 

546,  547 

Cornell,  Jn  re 

845 

Coventry  v.  Coventry       52, 

108, 

268,  276, 

0.  Green 

500 

280,  282,  884,  899, 

901 

908,  924 

V.  Lovett 

514 

V.  Hall 

872 

Cornell's  Estate 

545,  549,  917 

V.  Higgs 

513,  517 

Cornfoot  v.  Fowke 

172 

Coverdale  v.  Eastwood 

208 

Corning  v.  Lewis 

680 

Covington  v.  Anderson 

828 

V.  White 

594 

V.  McEntire 

546 

Cornish  v.  Wilson 

558,  570 

Cowdery  v.  Way 

654 

Cornwell  v.  Orton 

299 

Cowdry  v.  Day 

203 

Corn  wise  v.  Bourgum 

466,618 

Cowell  V.  Gatcombe 

402,  417 

Corp.  of  Carlisle  v.  Wilson 

871 

V.  Hicks 

358 

Corp.  of  Reading  v.  Lane 

600 

Cowgill  V.  Oxmantown 

539,  777 

Corp.  of  Sons  of  Clergy  v.  Mose             743 

Cowing  V.  Howard 

918 

Corrance  v.  Corrance 

027 

Cowles  V.  Brown 

511 

Correll  v.  Lauterbach 

248,  277 

Cowley  V.  Hartstonge 

461,  511 

Corrie  v.  Byron 

286 

V.'  Wellesley 

546 

Corse  V.  Chapmaa 

490,  671 

Cowman  v.  Colquboun 

820  a 

V.  Corse 

490 

V.  Hall 

322 

V.  Leggett 

81,  82 

V.  Harrison 

113,  117 

Corser  v.  Craig 

438 

Cowper  V.  Cowper 

183.  357 

Corson,  Re 

189 

V.  Mantell 

119,  256 

INDEX   TO   CASES   CITED. 
[References  are  to  eectiooe.] 


Iv 


Cowper  V.  Stoneham  848 

Cowpertliwaite  c.  Uauk  181 

Cowstad  V.  Cely  878 

Cox  y.  Arnsiuan  171 

V,  bassett  714 

V.  bateman  137,  2G0,  8.J7 

V.  Bennett  U17 

V.  Chamberlain  785 

V.  Coleraau  (J08 

V.  Cox  124,  55G  a,  794,  7'J'J 

V.  Dolman  SfJ.J 

V,  Edwards  2'jy 

V.  Fenwick  232,  237 

V.  Ilalstead  602  v,  (-02  u 

V.  John  l'J7 

f.  Ledward  347 

V.  Martin  4G6 

V.  Parker  160,  434 

V.  Sprigg  98,  109 

V.  Walker  17,  328,  411,  520 

V.  Wills  540,  894 

V.  Wood  232 

Coykendall  v.  Rutherford  499 

Cozine  v.  Graham  84 

Cozzons'  Instate  415 

Crabb  r.  Crabb  75,  77,  147 

V.  Young  401 

Crackett  v.  Bethuue  466,  4G8,  900 

Cradock  v.  Owen  327,  437 

V.  I'iper  432.  895 

Crafton  v.  Frith  699 

Craig  V.  Craig  274,  280,  281,  393,  396. 

398,  766 

V.  Hone  277,  381 

V.  Leslie  64 

V.  Radford  55 

V.  Wheeler  450,  451 

Craigdallie  r.  Aikman  734 

Craigg  !'.  Holmes  191 

Crallan  r.  Oughton  601 

Cram  v.  Mitchell  195,  206,  586,  590 

Crampton  v.  Seymour  910 

Cranch  r.  Cranch  449 

Crane  r.  Bolles  315,  448 

t'.  Caldwell  238 

V.  Conklin  187,  191 

V.  Crane  17,  328 

V.  Drake  225,  810,  815 

V.  Gough  110 

V.  Hearn  419 

V.  Iiiglehart  459 

r.  Kellev  680 

V.  Palmer  239 

V.  Reeder  780 

V.  Ruder  327 

Cranson  i-.  Wilsey  281 

Cranston,  /n  re  705 

V.  Crane  602  ro,  602  a!,  779 

r.  Plumb  674 

Cranstown  v.  Johnston  71,  72 

Crate  r.  Luippold  437  a 

Craven's  Case  459 

Crawford  v.  Bertholf  38,  231 

r.  Langmaid  96 

r.  North  Eastern  Ry.  545,  556 

r.  Patterson  612 

V.  Weam  5116 

Crawford's  Appeal  96 

Crawley  v.  Crawley  397,  449,  551 


Crawley  v.  Dixon  551 

Crawhhaw  f.  Collins  906 

Crawsliay  v.  Collins  430,  454,  470 

Creagh  v.  Blood  13,  2i;'j,  347 

V.  Wilson  5i4_  515 

Creaton  r.  Creaton  305,  308,  315 

Credlant's  Estate  310  a 

Creed  v.  Creed  876 

V.  Lancaster  Bank     126,  130,  139,  149 

Creesy  v.  Willis  5f;o 

Creigh  V.  llenson  863,  866 

Creigliton  v.  Ringle  225,  456 

Crenty  v.  Dupree  75 

Crerar  v.  Williams  700 

Cresop  V.  McLean  602 '/d 

Grossman's  Appeal  82,  101,  109 

Cresson  v.  Ferree  498,  506,  783 

Cresson's  Appeal  704 

Cresswell's  Adm'r  v.  Jones  82 

Creswell  v.  Dewell  849,  851,  926 

Creuze  v.  Hunter  600 

Creveling  v.  Fritts  195 

Crewe  v.  Dicken  271,  273,  408,  411, 

497,  502,  503,  806 

Cribbins  n.  Barkwood  188 

Crichton  v.  Crichton  467,  828 

r.  Grierson  712 

Cridland's  Estate  453 

Cripps  V.  Jee  82,  151 

Crislield  v.  State  863 

Crisp  V.  Spranger  246,  403 

Crispell  V.  Dubois  201,  204,  210 

Crissman  v.  Crissman  86 

Critchtield  v.  Havnes  602  v 

Critton  v.  Fairchild  334 

Crocheron  v.  Jaques  39 

Crocker  v.  Dillon  281,  841 

r.  Lowenthal  ofiq 

V.  Robertson  602  d,  602 , 

Crockett  v.  Crockett      112, 117,  118,  386  a 

020 

V.  McGuire  241 

Croft  V.  Adam  249,  251 

V.  Arthur  149 

V.  Lathrop  72 

V.  Powell  602  c 

■o-  Slee  152,  655 

Crofton  V.  Davies  360 

t'.  Ormsby  217,  S28 

Crofts  V.  Evett  718 

V.  Middleton  184,  657 

Croker  v.  Hertford  93 

Cromie  v.  Bull  510 

Crommelin  v.  Crommelin         513,  514,  517 

Crompton  v.  Vaser  97 

Cronnin  v.  Louisville,  &c.  Soc.       715,  748 

Crook  ?•.  Brooking  82,  86 

r.  De  \'andes  380 

V.  First  Nat.  Bank  82 

V.  Glen  858 

r.  Ingoldsby  259 

V.  Tull  678 

V.  Turpin  626,  628,  630,  632 

Crooke  r.  Kings  County  23 

Crop  r.  Norton  126,  132,  133,  196 

Cropster  v.  Griffith  52 

Crosby  r.  Church  658,  669 

r.'  Ilillyer  593.  596 

V.  Huston  284,  602 rf,  602y> 


Ivi 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Crosby  v.  Mann 

V.  Mason 
Croskill  V.  Bower 
Cross  V.  Beavan 

V.  Cross 

V.  Kennington 

V.  Norton 

V.  Petree 

V.  Smith 

V.  U.  S.  Trust  Co. 
Cross's  Instate,  Re 
Crosslin^;  v.  Crossling 
Croton,  &c.  Co.  v.  Ryder 
Croughton's  Trusts,  In  re 
Crowe  V.  Ballard 

V.  Crisford 
Crowley  v.  Richardson 
Crowther,  In  re 

V.  Crowther 
Croxall  V.  Shererd 
Croxton,  Ex  parte 
Crozier  v.  Crozier 

V.  Young 
Cruce  17.  Cruce 
Crue  V.  Caldwell 
Cruder  v.  Cruder 


928 

476  a 

195,  432,  461 

617 

380 

570 

82 

438 

407 

72,  382 

150 

252,  507 
761 
671 

192,  206 
451 
858 

348,  466 

858,  871 
6,  301,  321 
891 
371 
149 
471 
104 

660,  667 


V.  Halliday  268,  274, 280,  285,  401,  901 

V.  Heywood  612 

V.  Jones  334 

Cruikshank  v.  Parker  506 

Cruikshanks  v.  Roberts  72 

Cruise  v.  Christopher  189 

Cruiston  v.  Olcott  452 

Crump,  In  re  654 

V.  Baker  913 

V.  Gerack  468 

Cruse  V.  Barley  152,  160,  499 

V.  McKee  251,  254,  255 

Cruselle  v.  Chastain  437  b 

Crutcher  v.  Hord  215 

Crutchfield,  Ex  parte  606 

Cruwys  v.  Colman  112,  248,  256,  285 

Cryder's  Appeal  795,  798 

Cuddy  V.  Waldron  886 

Cueman  v.  Broadnax  301 

Cuff  V.  Hall  490,  771 

Culbertson  v.  The  H.  Witbeck  Co.  166 

Culpepper  v.  Aston  152,  597,  764,  770.  785, 

789,  795,  796 

Culross  V.  Gibbons  83 

Cuh^er  v.  Culver  205 

Cumberland  v.  Codrington  98,  562 

Cumberland  Coal  Co.  v.  Hoffman  Coal 

Co.  206 

Cumberland  Coal  Co.  v.  Sherman  207 

Cumick  V.  Tucker  11.3 

Cuming  v.  Robins  137 

Cummings  v.  Boswell  544,  545 

V.  Cummings  127 

V.  Fullam  438 

V.  Miller  680 

V.  Sharp  662 

V.  Williamson  660,  768 

Cummins  v.  Bromfield  888 

V.  Cummins        260,  261,  262,  264,  429, 

454 
Cumston  v.  Bartlett  511  c 

Cunard's  Trusts,  Re  264 

CunistoQ  V.  Bartlett  253 


Cunliffe  v.  Cunliffe 
Cunnack  v.  Edwards 
Cunningham  v.  Autrobus 

V.  Davenport 

V.  Foot 

V.  Freeborn 

V.  Gray 

V.  McKinley 

V.  Moody 

V.  Parker 

V.  Pell 

V.  Schley 


112 

727,  730 

633 

82,  225 

166 

585,  593 

577 

863,  864,  865 

323 

511a,  570 

876,  879,  881 

539 


Cunningham  &  Frayling,  In  re  248 

Curd  V,  Field  790 

Cureton  v.  Watson  456 

Curling  v.  Curling  724,  728 

V.  Shuttleworth  602  c,  602 ;» 

Cumick  V.  Tucker  113 

Curran  v.  Green  277 

Currant  v.  Jago  144 

Currence  v.  Ward  126,  166 

Currer  v.  Walkley  795 

Currey,  Re,  Gibson  v.  Way  671 

Currie  v.  Hart  590 

V.  Pye  747 

V.  Steele  185 

V.  White  82,  122,  231 

Currier  v.  Studley  865 

Curry  v.  Allen  861 

V.  Hill  764 

V.  Shrader  675 

Curteis  v.  Candler  280,  476  «,  894,  899, 

922,  928 

Curtis,  In  re  593 

V.  Brown  728 

V.  Buckingham  602  ee 

V.  Curtis  871 

V.  Daniel  864 

V.  Engel  660 

V.  Fullbrook  501 

V.  Hutton  709,  741 

V.  Lakin  861 

V.  Lanier  218 

V.  Leavitt  592 

V.  Luken     160,  381,  385,  393,  532,  535 

V.  Mason  417,  419 

V.  Perry  165 

V.  Price  305,  319 

V.  Ripon  112,  113,  116 

V.  Smith  71,  275,  280,  615,  843 

Curtis's  Estate  917 

Curtiss,  In  re  280 

Curton  V.  Jellicoe  797 

Cusack  V.  Cusack  361 

V.  White  214 

Gushing  v.  Blake  324,  357,  358,  359 

r.  Danforth  206 

V.  Spaulding  299,  386 

Custman  v.  Bonfield  428,  760 

V.  Coleman  359 

Cushney  v.  Henry  38^  240 

Custance  v.  Cunningham  151 

Cuthbert  v.  Baker  793 

V.  Chauvet  920 

V.  Rolf  648 

Cutler  V.  Babcock  245 

V.  Griswold  149 

V.  Tuttle     126,  131,  132, 133, 137,  149, 

165 


INDEX    TO    CASES    CITED. 
[References  are  to  aectioiiB.] 


Ivii 


Cutler's  Trusts 

63;j,  030 

D'Arcy  ».  Ilall 

428,  431 

Cuyler  v.  liradt 

82,  130,  805 

Dare  r.  Allen 
Dargan  r.  Richardson 
Durke  r.  Martyti 

639 
589,  593 
443,  453 

D. 

V.  Williamson 
Darkiii  v.  iJarkin 

476,  907 
127 

Dabnev  v.  Manning  308 
Da  Costa  v.  Da  Pas         702,  715,  718,  724, 

729 

Daggett  V.  White  264 

Dagley  v.  Tol  ferry  624 

D'Aguilar  v.  Driiikwater  511,  517,  518 

Dailev  V.  New  Haven  43,  277 

Dakin  v.  Beresford  649 

V.  Dcmining  918 

V.  Savage  2H8 

Daland  1'.  Williams  245 

Dale  V.  Hamilton  82 

Daley  v.  Desbouvierie      512,  517,  518.  519 

Dalheguey  v.  Tabor  246  « 

Dallam  v.  Fitler  591 

V.  Wampole  667,  679 

Dallmeyer,  Jn  re  397,  622 

D'Almaine  v.  Anderson  286 

Dalrymple  v.  Taneyhill  610 

Dalston  c.  Coatsworth  183 

Dalton  V.  Dalton  828 

V.  Hewen  795 

V.  Jones  200 

«.  Young  802 

Dalton's  Settlement  612 

Daly  V.  Beckett  530 

V.  Bernstein  260 

Dalzell  V.  Crawford  598,  794,  795,  796, 

798 

Dame  v.  Annas  784 

Dammert  v.  Osbom  382,  "29 

Damon  v.  Bibber  602  <i 

Damon's  Case  739 

Dan  V.  McKnight  218 
Dana  v.  Bank  of  United  States       31,  588, 

590,  592 

V.  Dana  124,  127 

V.  Davenport  602  a  a 

V.  Farrington    602  o,  602  r,  602 1,  602  a, 

602  a; 

V.  Lull  591 

V.  Murray  382,  511 6 

V.  Newhall  218 

V.  Petersham  231 

Dance  v.  Goldingham  86 

Dandridge  v.  Minge  562 

Danforth  v.  Briggs  145 

Danforth's  Estate  468 

D'Angibau,  In  re  52 

Daniel  v.  Daniel  330 

V.  Davidson  217,  828 

V.  Hollingshead  218 

V.  Newton  623 

t'.  Robinson  660 

V.  Uhley  50 

V.  Warren  451 

Daniels  v.  Eldridge  386,  555 

Danser  v.  Warwick  86 

Danson,  In  re  394 

Darby  v.  Calligan  680 

Darcv  V.  Kclley  727 

D'Arcy  v.  Blake  323,  871 

V.  Croft  487,  649 


Darley  v.  Darley      107,  310,  612,  647,  648, 

651 

Darling,  In  re  699,  701 

v.llammer  4C9 

V.  Potts  166,  195,  428 

Darlington,  Ex  parte  615 

v.  l^arlington  448 

V.  McCooke  97 

Darlington's  Estate  206 

Darnaby  v.  Watts  415,  790 

D'Arnv  v.  Chesneau  345 

Darrah  r.  McNair  94,  327,  436 

Darrow  v.  Calkins  127,  343,  451 

Dartmouth  College  v.  Woodward      30,  44, 

737,  742 

Dartnall,  In  re  177 

Darwell  v.  Darwell  421 

Darwin  i'.  Hanley  591 

Dashell  r.  Earle  639 

Dashiel  v.  Att'y-Gen.  160,  724,  748 

Dashwood  v.  Bulkeley  511,  512,  515,  517, 

518,519 

Daubigny  v.  Duval  243 

Daubrev  v.  Cockburn  511  a 

Daughady  t'.  Payne  232,  237 

Davall  V.  New  liiver  Co.  434 

Davant  v.  Guerard  330 

Davenport  v.  Coltman  160 

V.  Davenport  680 

r.  Farrar  324 

V.  Kirkland  451 

V.  Prewett  633 

V.  Stafford  440 

Davenport  Plow  Co.  v.  Lamp  828 

Daveron,  In  re  382 

Davev  v.  Durant  768,  780 

David  I'.  Frond  924 

Davidson  v.  Bowden  52 

V.  Foley  152 

V.  Gardner  654 

V.  Little  187,  188 

V.  Moore  275 

Davidson's  Ex'r  v.  Kemper  815  a 

Davie  v.  Beardsham  38,  231 

Davies  v.  Bush  784 

V.  Davies  160,  361,  618,  834 

t'.  Hodgson  53,  671 

t'.  Lee  540 

V.  Speed  379 

V.  Thomycroft  646,  652,  671 

I'.  Topp  563 

V.  Westcombe  776 

Davies  to  Jones  313 

Davis,  Kx  parte  286 

r.  Austin  618,  624 

V.  Banistable  732 

r.  Barrett  431 

r.  Bay  State  League  894 

V.  Bessehl  890  a 

V.  Boyden  865 

V.  Browne  816 

V.  Cain  647.  648 

V.  Charles  River  R.  Co.               17,  328 


Iviii 


Davis  V.  Cobum 
V.  Cotton 
V.  Davis 
V.  Dendj' 
V.  Eastman 
V.  Gardner 
V.  Hamlin 
V.  Harkness 
V.  Harman 
V.  Hayden 
V.  Hodgson 
V.  Howcote 
V.  Jackson 
V.  Johannot 
V.  Lamb 
V.  Marlborough 
V.  McNally 
V.  McNeil 
V.  Newton 
V.  Otty 
V.  Prout 
V.  Rhodes 
V.  Roberts 
V.  Schmidt 
V.  Scovern 
V.  Settle 
17.  Simpson 


INDEX   TO    CASES   CITED. 
[References  are  to  sections.] 


80,  8fi-l 

865 

124,  127,  639,  8in 

912 

471,  869 
569 
206 
618 

441,  456 
302 
849 
783 
545 
610 
232 
69,  188 
192 
411 
627,  629,  632 
84,  226 
648 
521 
618 
6.58 
206 
166 
195 


V.  Spui-ling         246,  402,  403,  404,  417 

V.  Stambaugh  84,  91,  245 

V.  Tingle  170,  849 

V.  Vincent  511  c 

V.  Wetherell  133 

V.  Whitehead  79 

17.  Williams  312 

Davis,  Petitioner  610 

Davis's  App.  786  a 

Estate  590 

Trusts,  Re  727 

Davoue  v.  Fanning  195,  197,  205,  294, 

428,  499,  501 

Davy  V.  Hooper  250,  251,  255 

V.  Seys  892 

Dawes  v.  Betts  787 

Dawson,  In  re  382 

Dawson  v.  Clarke      152,  157,  158,  160,  910 

V.  Dawson  38,  93,  97,  98,  104,  240,  280 

V.  Hearne  119 

V.  Jay  603 

V.  Lawes  210 

V.  Massey  200,  468 

V.  Parrot  901 

V.  Small  70G 

Day  17.  Arundel  219 

17.  Croft  818 

V.  Davis  866 

17.  Dav  891,  894 

V.  Roth  86,  126,  127,  135 

17.  Thwaites  5116 

Dayton  v.  H.  B.  Claflin  Co.  837 

Deaderick  v.  Cantrell       404,  416,  418,  420, 

421,  466 

17.  Watkins  187 

Dean,  In  re  705 

V.  Adler  104 

V.  Dean      75,  76,  84,  85, 126,  232,  378, 

855 
V.  Home  for  Aged  Women  903  a 

V.  Long  520 

V.  Mitchell  322 


Dean  17.  Sandford  277 

Deans  v.  Scriba  913 

Uearin  v.  Fitzpatrick  627,  929 

Dearie  ».  Hall  438 

Deatly  v.  Murphy  189 

De  Barante  v.  Gott  38 

Debenham  i7.  Ox  214 

Ue  Bevoise  i7.  Sandford  128,  195,  921 

De  Biel  v.  Thompson  208 

Debney  17.  Eckett  477 

De  Bouchout  v.  Goldsmid  243 

De  Caters  v.  Chaumont  195,  593 

De  Celis  v.  Porter  195 

De  Chambrun  v.  Cox  428 

17.  Schernierhoru  212 

Deck  17.  Tabler  145 

Decouche  v.  Lavetier  223 

Dedham  Bank  v.  Richards  593 

Deem  17.  Millikin  181 

Deen  17.  Cozzens  275,  619,  620 

Deerhurst  v.  St.  Albans  339,  360,  373,  390 

Deering  v.  Adams  262,  308,  312,  315 

17.  Kerfoot  560 

17.  Tucker  920 

De  Forrest  17.  Bacon  593 

Deg  17.  Deg  82,  137,  511  c,  837 

De  Garcin  17.  Lawson  718,  726,  741 

Degman  v.  Degman  511  c 

De  Graffenreid  v.  Green  541 

Dehon  v.  Foster  72 

Deibert's  Appeal  299,  305,  310 

Deihl  V.  King  380 

De  Jarnette  v.  De  Jarnette  453,  461 

Deklyn  v.  Watkins  71 

Delalield  17.  Anderson  187 

17.  Calden  891 

Delagarde  i7.  Larapriere  630,  645 

Delane  i7.  Delane  141 

Delaplaine  i7.  Lawrence  774 

Delaplane  17.  Lewis  259 

Delassus  i7.  Poston  2-32 

De  Laurencel  v.  De  Boom  257 

Delavante,  In  re  890 

Dellinger's  App.  672 

Delmar's  Trust,  In  re  701,  720 

Delonev  v.  Hutcheson  136 

Deloraiie  v.  Brown  855,  862,  868 

Delouche  v.  Savetier  863 

Demall  17.  Morgan  602^ 
De  Manneville  v.  Crompton    171,  213, 460, 
466,  508,  509 

V.  De  Manneville  603 

Deraaree  v.  Driskill  149 

Demarest  17.  Wynkoop  218,  602  t,  602  bh, 

080,  855 

De  Montmorency  v.  Devereaux  202 

Demott  V.  Muller  680 

Den  V.  Crawford  299 

V.  Hanks  299 

Denholm  v.  McKay  607 

Denike  v.  Harris  440,  452 

Dening  i7.  Ware  100,  111 

Denn  i7.  McKnight  217 

Denne  17.  Judge  263,  273 

Dennett  ?7.  Dennett  299 

Dennis  v.  Badd  611 

17.  Dennis  528 

V.  Holsapple  288 

V.  McCagg  215 


INDEX   TO   CASES   CITED. 
[Refereuces  are  to  aections.] 


lix 


Dennis  v.  McCoy 

206 

Deunison  r.  Goehring 

98, 104, 

109, 

111, 

140,  143, 

35'J 

361 

V.  Nigh 

642 

Denny  v.  Allen 

918 

V.  Kettel 

257 

Dent  V.  Allcroft 

"Oil 

V.  Bennett 

180,  190 

204 

210 

V.  Dent 

477 

552 

Denton  v.  Davis 

83,  841 

844 

965 

V.  Denton 

329 

V.  Doiiner 

187 

188 

V.  McKenzie 

167 

Denver  v.  Druce 

722, 

729 

731 

De  Peyster  v.  Beekraan 

873 

V.  Clarkson 

463 

468 

t'.  Clendinning  240 

259, 262,  263, 

275, 

280 

541 

V.  Farrars 

343, 

411 

414 

V.  Gould 

120 

137, 

138 

V.  Michael 

537 

De  Peyster's  Case 

918 

De  Fuy  v.  Standard  M. 

Co. 

72 

Derasmes  v.  Dunham 

275 

Derbishire  v.  Home 

671, 

846, 

84!) 

Derby  v.  Derby 

699,  720 

724 

748 

Deringer  v.  Deringer 

242 

Derome  i'.  Vose 

843 

Deroy  v.  Richards 

279 

Derry  v.  Derry 

127 

828 

V.  Peck 

177 

Derush  v.  Brown 

322 

De  Kuyter  i'.  St.  Peter's 

Church 

588 

754 

De  Saiissure  v.  Lj-ons 

499 

Desbody  v.  Boyville 

513 

Desborough  v.  Harris 

792 

De  Silver's  Estate 

189 

De  Tablev,  In  re 

477 

De  Teissier's  Settled  Estates,  Re 

552 

De  Teissier's  Trust,  7m  re 

477 

De  Themmines  v.  De  Bonneval 

702, 

715, 

718,  726,  741 
De  Vaughn  v.  Hutchinson  358 

Devaynes  v.  Robinson    768,  800,  822,  823, 

845,  S78 
Devenish  v.  Baines  169, 181, 182 


Devey  v.  Thornton 
Devin  v.  Henderchott 
De  Vinnev  v.  Norris 

V.  Reynolds 
De  Visnc,  In  re 
Devon's  Settled  Estates,  In  re 
De  Voss  V.  Richmond 
Devoy  v.  Devoy 
Dewall  V.  Covenhoven 
Dewdney,  Ex  parte 
De  Weever  r.  Rockport 
Dewey  v.  Adiims 

V.  Littlejohn 

V.  Long 
Dewey's  Ex'rs  v.  Rugglea 
De  Witt  V.  Eldred 
De  Wolf  V.  Chapin 
Dexter  v.  Arnold 

V.  Getting 

»•  Evans 

V.  Gardner 
Stewart 


901,  927 
321 
202 
783 
144 
503 
225 

144,  147 

629,  654 
228,  481,  855 
023 
591 
591 
126 
795 
043 
585 
228 

277,  426 

114 

705,  706,  724,  737,  748 

231 


Deys  V.  Van  Valkenberg 


602  i 


Dial  V.  Dial 

518,  890 

Dias  V.  Brunei! 

843 

Dibble  V.  Mitchell 

237 

Dibbs  V.  Goren 

931 

Dick  V.  Dick 

79 

t'.  Harbv 

248,  253 

V.  Pitchford           386  a, 

555, 

646,  652, 
653,  921 

Dick's  Estate 

468 

Dickason  v.  Fisher 

237 

V.  Williams 

347 

Dickel  t>.  Smith 

166 

Dickenson  v.  Davis 

143 

Dickerman  v.  Abmhams 

660 

Dickerson  v.  Carroll 

815c 

V.  Smith 

175 

Dickerson's  App. 

86,  104 

Dickinson,  Kx  parte 

332 

r.  Chase 

238 

V.  Coates 

87 

V.  Codwise 

127,  129 

V.  Conniff 

526 

V.  Dickinson 

76 

582,  772 

V.  Hoomes 

71 

V.  Player 

454 

V.  Shaw 

145 

V.  Teasdale 

863 

Dickinson,  Appellant 

453 

Dickson,  In  re 

615 

V.  Harrison 

877 

V.  Lockyer 

225 

V.  Montgomery          724 

728 

731,  748 

Dickson's  Trust 

555,  930 

Diefendorf  v.  Spraker 

268 

401,  921 

Dietterich  v.  Heft 

471 

Diffenderffer  v.  Winder   463, 

468, 

471,  472, 
918 

Digby  V.  Irvine 

653 

Digges's  Case 

5116 

Diggles,  In  re 

114 

Diggs  V.  Walcott 

72 

Dike  V.  Ricks 

785,  789 

Dilkes  V.  Broadmead 

932 

Dill  r.  McGehee 

843 

Dillard  v.  Crocker 

126 

219,  221 

V.  Dillard 

149,  248 

V.  Tomlinson 

462,  468 

Dillaye  v.  Commercial  Bank 

218,  225 

t'.  Greenough 

95,  158 

Dillor  i'.  Brabaker 

851 

Dillinger  v.  Llewelyn 

97 

Dillon  V.  Bone 

100 

V.  Coppin        97,  98.  100, 

103, 

107,  111 

r.  Grace 

656 

Dilworth  V.  Rice 

500 

Dimes  v.  Scott  402,  422,  450, 

467, 

547.  548, 

549 

,551,847 

Dinn  v.  Grant 

231 

Dinsmore  ?'.  Biggert 

318,  319 

V.  Racine 

757 

D'Tnvornois  v.  Leavitt 

590 

Dinwiddle  t".  Bailey 

871 

Dipple  V.  Tories 

86,97 

Disher  r.  Disher 

97 

Dismukes  r.  Terry 

137 

DisRcnger,  Re 

613 

Ditmars  r.  Smith 

76 

Dix  t'.  Akcrs 

674 

r.  Burford 

263, 

417,  419 

Ix 


INDEX    TO    CASES    CITED. 


[Belerences  are  to  sections.] 


Dix  V.  Cobb 

V.  Read 
Dixon  V.  Caldwell 

V.  Dixon 

V.  Gavfere 

V.  Hiil 

V.  Homer 

V.  Horner 

V.  McCue 

V.  Miller 

V.  Olmius 

V.  Saville 

V.  Smith 
Dobbins  v.  Stevens 
Dobson  V.  Land 

V.  Leadbeater 

V.  Pearce 

V.  Racey  195, 197, 

Docker  v.  Somes  427, 

Dockey  v.  McDonald 

V.  McDowell 
Docksey  v.  Docksey 
Dod  V.  Dod 
Dodd  V.  Geiprer 

V.  Ghiselin 

V.  Wake 

V.  Winship 
Dodds  V.  Hills 
Dodge  V.  Cole 

V.  Essex  Ins.  Co. 

V.  Hogan 

V.  Hollinshead 

V.  Manning 

V.  Pond 

V.  Stevens 

V.  Tulleys 

V.  Williams 

V.  Woolsey 
Dodkin  v.  Brunt 
Dodson  V.  Ball  304, 

V.  Dodson 

V.  Hay 

V.  Samnell 

V.  Simpson 
Doe  V.  Aldridge 

V.  Bennett 

17.  Biggs 

v.  Cafe 

V.  Cavan 

V.  Claridge  308, 

V.  Collier 

V.  Cook 

V.  Copesteak 

V.  Duval 

V.  Edlin 

V.  Ewart 

V.  Field 

V.  Godwin 

V.  Halcombe 

V.  Hardwicke 

V.  Harris 

V.  Hawthorne 

V-  Hicks 

V.  Hilder 

V.  Hole 

V.  Homfray 

V.  Howells 

V.  Howland 


438 

272 

211,  218 

238,  640 

235 

221 

275,  287,  918 

272 

456 

661,  675 

181,  648 

323 

817 

202 

431,  437 

219 

72 

,  199,  206,  228 

429,  430,  454, 

464,  470 

914 

456 

150 

361 

642 

52 

380,  383 

927 

829 

127 

855 

568,  583 

685 

576 

748 

195,  816  a 

875 

398,  448 

816 

38,  240 

311,  320,  652 

366 

323,  324, 371 

455 

225,  810 

703 

338 

297,  305,  306 

308,  315,  357 

5116 

310,  312,  317 

298 

355 

703 

602  A 

305 

305 

304,  312 
414,  505 

530 
530 
261,  267,  270 
702 
312,  319 
349 
530 

305.  313 
698,  699 

315 


Doe  V.  Hughes 

V.  Ironmonger 

V.  Keen 

V.  Keir 

V.  Langdon 

V.  Lightfoot 

V.  Lloj'd 

V.  Martin 

V.  Nepeau 

V.  Nichols 

V.  Passingham 

17.  Phillips 

V.  Pitcher 

V.  Pratt 

V.  Price 

17.  Read 

V.  Roake 

V.  Robinson 

V.  Roe 

V.  Routledge 

V.  Scott 

V.  Scribner 

V.  Simpson 

V.  Smeddle 

V.  Smith 

V.  Stace 

V.  Steaple 

V.  Stephens 

t".  Sybourn 

V.  Thorley 

V.  Vincent 

V.  Walbank 

V.  Walker 

17.  Willan 

V.  Williams 

17.  Woodhouse 

17.  Wrighte 
Doebler's  App. 
Doering  v.  Doering 
D'Oeschener  i7.  Emerson 

1'.  Scott 
Doggett  17.  Hart 

V.  Lane 
Dolan,  In  re 

17.  Jlayor  of  Baltimore 

17.  McDerinot 
Dolbiac  v.  Dolbiac 
Dold  V.  Geiger 
Dolder  v.  Bank  of  England 
Dole  17.  Lincoln 

V.  Wilson 
Dollinger's  Appeal 
Dolliver  v.  DoUiver 
Dolman  17.  Nokes 
Domestic  &  F.  Mis.  Society  v.  Gaither  729 
Dominick  v.  Michael  34,  499,  500 

17.  Sayre  250,  414 

Dommett  i7.  Bedford  388,  555 

Donahoe  v.  Chicago  Cricket  Club    96,  202 

V.  Con  rah  V  83 

Donalds  v.  Plumb  347,  660 

Donaldson  v.  American  Tract  Soc. 

391,  748 

17.  Donaldson  98,  100, 102,  105 

17.  Pusev  918 

17.  West  Bank  640 

Doncaster  i7.  Doncaster     359,  372,  373 
Donegal's  Case  189 

Doniphan  i7.  Paxton  602^ 


501,  597,  802,  803,  805 

305 

871 

5116 

349 

338 

354 

785 

929 

311 

301,  304 

866 

706 

570 

346 

350 

511c 

408,  602  A,  602  rta 

490 

165,  303 

305 

592 

308,  313 

312 

270 

809 

353 

529  530 

349,  350,  351,  352^  355 

5116 

511c 

308 

93 

308,  312,  318 

530 

313 

352,  355 

3.58 

260 

171,  230 

670 

17,  328 

204 

305 

768 

699,  705 

665 

628 

826 

87 

863 

77 

828 

179 


INDEX    TO   CASES   CITED. 
[References  are  to  Bectioos.] 


bd 


Donisthorpcr.  Porter  348 

Don  1  in  r.  IJradley  126 

Donne  v.  Hart  633 

V.  Lewis  563 

Donneli\-  f.  Boston  Oath.  Gem.  Ass'n   72y 

Donohue  v.  Chase  602  a 

Doolan  v.  Blake  G70 

Doolittle  V.  Lewis   500,  602  <7,  602  «,  602  ee 

Doran  i-.  Doran  127 

V.  Simpson  225 

r.  Wiltshire  597,  776,  794,  7'JG 

Dorance  r.  Scott  601 

Dorchester  v.  Effingham  390,  443 

Doreinus  v.  Lewis  591 

Dorland  r.  Dorland  499,  501 

Dormer  i'.  Fortescue  871,  872 

V.  Thurland  511  b 

Dornford  v.  Dornford  468,  472,  847 

Dorr  V.  Clapp  315 

V.  Davis  127 

V.  Wainwright  262,  263,  574 

Dorrah  v.  Hill  60 

Dorranee's  Estate  913 

Dorris  v.  Miller  468 

Dorsett  v.  Dorsett  555 

Dorsev  f.  Banks  878 

r."  Clarke  126,133,135 

V.  Dorsey  209,  918 

V.  Garcey  15,  843 

V.  Gilbert  610 

V.  Thompson  275 

V.  Wolcott  189 

Doswell  V.  Anderson  118,  380  a 

V.  Buchanan  221 

Dotv  V.  Hubbard  607 

'v.  Mitchell  655,  661 

V.  Wilson  100 

Dougars  v.  Rivaz  742 

Dougherty  r.  Shillingsburg  163 

Douglas,  In  re  347 

V.  Corrj'  803 

V.  Cruger  920 

Douglass  t'.  Allen  597 

V.  Andrews  613 

V.  Archbutt  432,  904 

V.  Browne  402 

V.  Congreve  359,  551 

V.  Culverwell  202 

V.  Horsefall  874 

V.  Lucas  141 

V.  Price  143 

V.  Russell  68 

I'.  Satterlec  421 

V.  Stephenson's  Ex'or  443 

Douthitt  V.  Stinson  890  a 

Pove  r.  Everard  261 

Dover.  Ex  parte  263,  281 

V.  Gregory  570 

V.  Kennedy  780 

V.  Rhea     "  79 

Dow  V.  Dawson  438 

V.  Dow  276 

r.  Jewell  126,  132,  140,  141,  865 

V.  Plainer  590 

Dow's  Petition  610 

Dowd  t'.  Tucker  171,  181,  182 

Dowel  1  V.  Dew  650 

Dowlinff  r.  Belton  611 

V.  Eeeley  209 


Dowling  V.  Hudson  795 

V.  Maguire  653,  657,  658 

Dowman  r.  Rust  569,  570,  796 

Down  V.  Morris  327,  435 

r.  Worrall  714,  721,  731 

Downer  v.  Church  152 

V.  Downer  507 

Downes  v.  Bullock  851,  932 

r.  Grazebrook    128,  195,  347,  770,  786 

V.  Harper  Hospital  729 

f.  Hodgson  931 

V.  Jeimings  183,  208 

V.  Thomas  883 

r.  Timperon  656 

Downey  v.  Bullock  618 

Downing  r.  Marshall  894 

V.  Townsend  109 

Downs  f.  Richards  129 

Dowse  V.  Gorton  466 

Doyle  V.  Blake         259,  261.  202.  264,  268. 

401,  403,  421,  422,  914,  927 

v.  Coyle  511  c 

V.  Peerless  246  a 

V.  Sleeper  12G,  149 

V.  Whalen  727 

Doyley  v.  Att.-Gen.  249,  255,  258,  503 

D'Oylevf.  Loveland  598 

Doyly  V.  Sherratt  411 

Drake  v.  Crane  455,  466 

r.  Drake  371 

r.  Moore  602  dd 

V.  Pywall  17 

V.  Rogers  592 

V.  Whitmore  768 

f.  Wild  863 

Drakeford  v.  Wilks  226 

Drane  v.  Davliss  500 

t'.  Guuter  268,  274,  336,  602  m 

Draper  v.  Minor  275 

I'.  Stone  844 

Drapers'  Company  r.  Davis  203 

Drasier  v.  Brereton  96,  417,  447 

Drayton  v.  Drayton  501 

V.  Grimke  '  500 

V.  I'ocock  764,  770,  787,  807 

Drennen  v.  Walker  215 

Dresser  v.  Dresser  112 

Drever  v.  Mawdesley  600 

Drew  r.  Martin  144 

V.  Norbury  223 

V.  Waketield  891,  899 

Dringr.  Greetham  481 

Drinkwater  v.  Combe  348 

Driver  r.  Fortner  602  o,  602  oc 

Drohan  r.  Drohan  484,  809 

Drovers'  &  M.  Nat.  Bank  v.  Roller       828 

Druce  r.  Denison  635 

Druid  Park  Heights  Co.  v.  Oetticger 

249,  508 

Drummond  v.  St.  Albans  872 

r.  Tracy  49,  50 

Drur}-  r.  Connor  245 

r.  Cross  207 

r.  Drury  34 

V.  Hook  214 

r.  Natick  500,  700,  724,  748 

V.  Scott  626,  668 

r.  Smith  87 

Drusadow  v.  Wilde  611  c,  783 


Ixii 


Drydeii  r.  Frost 

V.  Ilannaway 
Dryden  Ad.  v.  Stephens 
Drysdale's  Appeal 
Duberly  v.  Day 
Dubless  V.  Flint 


INDEX   TO   CASES    CITED. 
[References  are  to  sections.] 


238 
133 
770 

205,  918 
633 

820,  8-27 


Dublin  Case        42,  732,  733,  734,  744,  745, 

748 

Dubois,  Ex  parte  332 

V.  Hall  '232 

Dubose  V.  Dubose  602 

Dubs  V.  Dubs  323,  324,  652 

Ducie  v.  Ford  79 

Ducker  v.  Burnham  252 

Duckett  V.  National  M.  Bank  122,  860 

V.  Skinner  610 

Duckworth  v.  Ocean  S.  Co.  411 

Dudgeon,  In  re  699 

V.  Connley  988 

Dudley,  £x  parte  613 

V.  Batchelder  133 

V.  Bosworth  139,  143,  146,  147 

V.  Dudley  122 

Duff  V.  McDonough  223 

V.  Wilson  211 

Dufford  V.  Smith  453,  803,  917 

Duffy  V.  Calvert  284,  598,  602  w.  787, 

791,  796,  797 

V.  Duncan  468,  918 

V.  McGuiness  347 

V.  Masterson  134 

Duffy's  Trust,  In  re  634 

Dugan  V.  Vattier  221 

Dugas  V.  Gilbeau  204,  205 

Dugdale,  In  re  378 

V.  Dugdale  903  a 

Duggam  V.  Kelly  515 

Duggan  V.  Slocum  472,  700,  709,  741 

Du  Hourmelin  v.  Sheldon  64 

Duke  V.  Fuller  705,  710,  730,  748 

Duke  of  Norfolk  v.  Brown  161 

Duke  of  Norfolk's  Case    377,  379,  382,  383 

Dulanev  v.  Willis  95,  260 

Dulany  V.  Middleton  382 

Dulin  V.  McCaw  658 

Dumas,  Ex  parte  345 

Dummer  v.  Chippenham  42,  511  a 

V.  Pitcher  144,  146,  162 

Dumoncel  v.  Dumoncel  64 

Dumond  v.  Magee  627,  629 

Dunbar,  In  re  77,  83 

V.  Mever  680,  680 

V.  Tre'dennick  206,  217,  828 

r.  Woodcock  451 

Duncan  v.  Camberlayne  438 

V.  Campbell  634 

V.  Dixon  627 

V.  Findlater  744.  914 

V.  Forrer  136 

V.  Jaudon  225,  814 

V.  Johnson  221 

V.  McCalmont  72 

Duncan's  Appeal  213 

Dunch  V.  Kent         428,  585,  593,  597,  795, 

79'', 
Duncklee  v.  Butler  398 

Duncomb  v.  N.  Y.  H.  &  No.  R.R.  Co. 

129 
Duncombe  v.  .\lston  480,  487 


Duncommer's  Appeal  417,  419 

Dundas  v.  Biddle  48,  511  b 

V.  Blake  559 

Dungannon  v.  Smith  385,  389 

Duuhani  v.  Chatham  75 

V.  Isett  757 

V.  Milhous  539 

V.  Presby  21 

V.  Waterman  590 

Dunkley  v.  Duiikley         626,  632,  635,  636 

Dunklin  v.  Wilkins  69 

Dunlap  I'.  Dunlap  82 

V.  Harrison  65 

V.  Mitchell  195,  205,  428 

V.  Plumb  655 

Duulop  V.  Burnett  232,  239 

V.  Dunlop  85 

V.  Hepburn  55 

V.  Hubbard  891 

Dunnian,  Ex  parte  780 

Dunn  V.  Berkshire  82 

V.  Chambers  187,  188,  189 

V.  Dunn  195,  453,  455,  460,  847 

V.  Raley  95 

V.  Sargeant  639 

V.  Seymour  873 

V.  Zwilling  245 

Dunnage  v.  White  157,  184,  185 

Dunne  v.  Dunne  457,  552 

Dunnica  v.  Coy  164 

Dunning  v.  National  Bank  500,  501 

V.  Pike  686 

Dunscomb  v.  Dunscomb  240,  462,  468,  900 

V.  Greenacre  629,  633 

Dunster  v.  Glengall  438 

Dunwoodie  v.  Reed  523 

Duplex  V.  Roe  295 

Dupont,  Ex  parte  55 

V.  Johnson  612 

Dupre  V.  Thompson  98 

Durand  v.  Durand  672 

Durant  v.  Fitley  672 

V.  Lallev  639 

V.  Ritchie  32,  299,  301 

V.  Smith  114 

Durfee,  In  re  276 

Durham  v.  Crackles  633 

Durkin  v.  Langley  437  o 

Durling  v.  Hammer  429 

Durnford  v.  Lane  .34 

Durour  v.  Motteux  701,  706 

Durpee  v.  Pavitt  142 

Durr  V.  Bowver  627,  632 

Durrett  v.  Com'th  453 

Dustan  v.  Dustan  901 

Dutch  Church  v.  Mott  349,  351 

Dutch  Reformed  Church  v.  Bandon        -393 

Dutton  V.  Cotton  6027>,  602  g 

V.  Morrison  587,  590 

V.  Poole  181,  182 

Duval  t'.  Getting  110 

Duval's  App.  768 

Du  Val  V.  Mar.«hall  133 

Duvale  v.  Duvale  82 

Duvall  V.  Bibb  232,  239,  299 

V.  Covenhoven  843 

V.  Fanners'  Bank  627,  632 

V.  Graves  647 

Dwight  V.  Pomroy  226 


Dve  r.  Beaver  Creek  Church 

7.J0 

Dyer  v.  Dyer    12G,  14a,  145,  140, 

101,  102, 

GU 

V.  Jacoway 

830 

V.  Leacli 

277 

V.  Potter 

891 

V.  Uiky 

415 

V.  Sliuflleff 

199 

Dver's  A  pp. 

82 

Dyett  I'.  Central  Trust  Co.       299 

520,  790 

V.  Coal  Co. 

655,  G<;u 

Dvkes  V.  McVay 

849 

D3-oU's  Estate                          463, 

408,  918 

E. 


Eade  v.  Eade  112,  113, 116 

Eager  v.  Barnes  418,  840 

Eagle  Fire  Company  v.  Lent  •i'i 

Eales  r.  England  112,  116,  325 


Eames  t'.  Hardin 

t'.  Wheeler 
Earl,  In  re 
Earl  of  Bath's  Case 
Earl  of  Bute  v.  Short 
Earl  of  Darlington  r.  Putney 
Earl  of  Oxford  v.  Albemarle 
Earle  r.  Earle 

V.  Huntingdon 

r.  Wood 
Earle's  Trusts,  In  re 
Earlom  v.  Saunders 
Early  v.  Doe 
Earnhart  v.  Eamhart 
Earp's  Appeal 

Will 
Ease  r.  Howard 
East  r.  East 

V.  Lowndes 

V.  Kyall 

v.  Twyford 
East  Greenstead's  Case 
Easterbrooks  v.  Tilliughast     160,  724,  748 
Easterly  r.  Keney  386  a 

Eastern  R.  K.  Co.  In  re  280 

Eastham  v.  Roundtree  127 


Eastman  v.  Cooper 

814 

V.  Davis 

863 

Easton  t'.  Carter 

262 

Eaton  V.  Eaton 

75,77 

V.  George 

685 

V.  Green 

220 

V.  Landor 

902 

V.  Smith 

273, 

284,  290,  294, 

497 

507,  508,  721 

V.  Wason 

680 

V.  Whiting 

602  bb,  602  d 

r.  Wits 

115 

Eaves  i\  Ilickson 

402 

851,  929,  931 

Ebberts's  App. 

127 

Eberhardt  v.  Perolia 

114 

Eberts  v.  Eberts 

200 

Ebrand  v.  Dancer 

54,  130,  144 

Eccleston  r.  Skelmersdale 

876 

Echliff  V.  Baldwin 

602  ee 

Echols  V.  Dimik 

602  (Vrf 

Eckels  V.  Stewart 

304 

Eckford  v.  De  Kay 

458,  606 

INDEX    TO   CASES    CITED. 
[References  are  to  sectiona.] 

Edd lesion  v.  Collins 
Eddowes,  In  re 
Eddy  V.  Ilartshorne 
V.  Smith 
V.  Traver 
Edelen  v.  Edelen 
Eden  v.  Foster 
Edgar  v.  Doniially 
Edge  V.  Salisbury 
Edgell  r.  Haywood 
Kiigerly  v.  Barker 
Edgington  v.  Williams 
Edie  V.  Applegate 
Edmands  v.  Bird 

r.  Crenshaw        205, 
V.  Dennington 
V.  Peake 
V.  Townshend 
Ednieston  v.  Lyde 
Edminster  v.  I'liggins 
Edmondson  v.  Dysod 

V.  Walsh 
Edmund's  App. 
Edson  V.  Bartow 
Edwards  i'.  Bates 
p.  Bohaunon 
V.  Burt 
V.  Carter 
V.  Culberson 
V.  Edwards 
V.  Fashion 
V.  Field 
V.  Freeman 
V.  Graves 
V.  Grove 
V.  Hall 
V.  Harvey 
V.  Jones 
V.  Lewis 
f.  Lowndes 
V.  Meyrick 
V.  Miilbank 
r.  Morgan 
V.  Pike 
».  Roberts 
V.  Sheridan 
V.  Tuck 
V.  Warwick 
V.  Williams 
Eedes  v.  Eedes 
Etiand  v.  Efland 
Egbert  v.  Brooks 
I'.  Butler 
V.  Schultz 
Egertou  v.  Brownlow 
17.  Carr 
V.  Conklin 
V.  Egerton 
Eglin  V.  Sanderson 
Kpmoiit  V.  Smith 
Ehlen  I'.  Elilen 
Eichelberger  v.  Barnitz 
Eidsforth  v.  Armistead 
Eipper  1".  r.enner 
Eland  r.  Baker 

V.  Eland      597,  795, 
Elborne  r.  Goode 
F-lder,  Ex  parte 
Eldredge  r.  Greene 


126 

98 

460 

171, 180 

112 

5116 

708 

260,  417 

858 

705,  724,  733,  748 

93 

401 

602  r 

358 

299,  305,  545 

556 

298 

440 

395 

747,  901 

359,  372 

830 


bdii 


52 

252 

121 

602/ 

238 

679 

734,  742 

127 

256 

570 

277,  371,  382,  736 

149 

818 

189 

418,  422,  432,  918 

653 

444,  786 

630 

594 

232 

359,  370 

602  t,  602  w 

310  o 

160 

843 

238 

188 

34,627 

166,  245 

126,  133,  144 

136 

144 

17,  577 

17,  249 

615 

709 

747,  774,  891 

97,  98,  101 

196 

17 

197,  202 

529 

871,  872 

216 

228 

639 

397,  584 

367 

869 

633,  634 

324 

910,  916 

419,  424,  440 

380 

359,  380 

99 

500 

900 

900 

877 

275 

380,  541.  547 

802.  80.-5,  805 

79,  82,  83 

768 

800,  801,  802,  810 

307,  903  a 

605 

465 


Ixiv 


INDEX    TO    CASES   CITED. 


[References  are  to  sections.] 


Eldredpe  v.  Heard 

V.  Knott 

V.  Preble 

V.  Smith 
Eldridge  v.  Putnam 
Elias  V.  Schweyer 
Klibank  v.  Montolieu 
Elijah  V.  Taylor 
Elkins  V.  Tresham 
Ellenborough  v.  Canterbury 
Ellerson  v.  Westcott 
Ellett  V.  Paxson 
El  lice,  Ex  j)arte 
Ellicombe  v.  Gompertz 
Ellicott  V.  Barnes 

V.  Chamberlia 

V.  Welch 
Elling  V.  Naglee 
Elliot  V.  Ince 
Ellinwood  v.  Holt 
Elliott  V.  Armstrong 

V.  Boaz 

V.  Connell 

V.  Cordell 

V.  Deason 

V.  Edwards 

V.  Elliott 

V.  Hancock 
V.  Hart 
V.  Lewis 
V.  Merriman 

V.  Pool 
V.  Sparrell 
V.  Waring 


248,  510,511 

8t)fi 

676,  677 

195,  199 

882 

275,  873 

629,  6;i5 

679 

173 

891,  894 

181 

780 

457 

380 

122 

209 

239 

918 

35 

347 

126,  137,  139,  347 

174 

226 

626,  634 

520 

236,  239 

54, 143,  145,  146,  147, 

151,  161,  851 

569,  570 

149 

880 

597,  598,  795,  796,  798, 

802,  810,  814,  807 

195 

263,  468,  471 


632 
V.  Wood°199,  602  fi,  602 .9,  602  p,  602  r 
Elliott's  Executors,  Appeal  of  101 

Ellis  V.  Allen  202 

V.  Amason  438 

V.  Atkinson  670 

V.  Baldwin  639 

V.  Barker  427,  433,  900 

V.  Boston,  Hartford  &  Erie  R.  K. 

Co.  273,  284 

V.  Carv  613 

V.  Ellis  113,  253,  901,  908 

V.  Essex  Merrimack  Bridge 


V.  Fisher 

V.  Guavas 

V.  Hill 

V.  Kenyon 

V.  Maxwell 

V.  Nimmo 

V.  Selby 

V.  Woods 
Ellis's  Trusts,  In  re 
Ellison  V.  Airey 

V.  Ellison 

V.  Elwin 

V.  Moses 

V.  Woody 
Ellison's  Trust,  In  re 
Ells  V.  Lynch 


312,  315 

243 

79 

680 

395,  397 

107,  108,  109 

151,  159,  711,  712 

648 

671 

569 

96,  98,  100,  104,  107,  367 

626 

828 

546 

270,  271 

385 


Ellsworthy  v.  Hinds 
Elniendorf  v.  Beirne 

V.  Lansing 

V.  Ta3'lor 
Elmer  v.  Scott 


640 

238 

418 

228,  855 

694,  724 


Elmlie  v.  McAulay 

225 

Klinore's  Trusts 

451 

I'jhns  V.  Hughes 

639 

l^^lmsley  v.  Young 

257 

lilsee,  'Ex parte 

910 

Klsej'  V.  Lutyens 

47,  891 

Elstner  v.  Fife 

259,  500 

Elthan  Parish  v.  Warreyn 

704 

Elton  V.  Elton 

375 

V.  Harrison 

501,  802 

V.  Shepherd 

318,  655 

Elve  V.  Bo3'ton 

453 

Elwell  V.  Chamberlain 

172 

Elworthy  v.  Bird 

672,  673 

V.  Wickstead 

633 

Elwyn  V.  Williams 

641 

Ely  V.  Cook 

591 

V.  Hair 

590 

V.  Turpin 

602  0 

Emblym  v.  Freeman 

157 

Emelie  v.  Emelie 

455 

Emerick  v.  Emerick 

229 

Emerson  v.  Cutler 

920 

V.  Galloupe 

83 

V.  Spicer 

608 

Emery  v.  Batchelder 

452 

Emery  v.  Chase 

299 

V.  Grocock 

349,  352 

r.  Hill 

741 

Emery's  Trusts,  Re 

627 

Emmet  v.  Clarke 

286 

V.  Dewhirst 

184 

V.  Emmet 

471 

Emmons  v.  Cairns 

541,  547 

V.  Shaw 

288 

Emperor  v.  Rolfe 

580 

Encking  v.  Simmonds 

602  A,  602  3 

Enders  v.  Public  Works 

764 

Enfield  Toll  Bridge  t>.  Hartford              757 

Engel's  Estate 

169 

England,  In  re 

613,  618 

V.  Downes 

213,  267,  901 

V.  Slade 

349,  351,  355 

English  V.  Mclntyre 

72,  467,  4C8 

V.  Miller 

72 

V.  Kussell 

232 

Ennis  v.  Leach 

602  nrt 

Enniss  v.  Smith 

511  c 

Enos  V.  Hunter 

137 

Ensley  v.  Balentine  126,  128, 

134,  135,  137 

Entwistle  v.  Markland 

550 

Episcopal  Church  v.  Wiley 

71 

Erickson  v.  Willard 

112,  248 

Erisnian  v.  Directors  of  Poor 

511  a 

Ernest  v.  Croysdill 

839,  840,  859 

Errat  v.  Barlow 

616,  619 

Errington,  Re 

400,  472 

V.  Chapman 

616.  619 

V.  Evans 

245 

Erskine  v.  Townsend 

226 

Erskine's  Trusts 

634 

Ervin's  Appeal 

610.  783 

Erwin  v.  Hall 

815  c 

V.  Parham 

187,  188 

V.  Seigling 

918 

Escheator  v.  Smith 

55,  310 

Eschrich,  In  re 

471 

Esham  v.  Lamar 

187 

Eshelman  v.  Lewis 

127 

INDEX   TO   CASES   CITED. 


Eshelman  v.  Shuman 
Eskridge  v.  McClure 
Espoy  V.  Lake 
Espin  V.  rembertoa 
Essex  V.  Atkins 
Estabrook  r.  Earle 
Estes  V.  Tillinghast 
Estwick  V.  Callaud 
Etches  V.  Etches 
Ettiiig  V.  Bank  of  U.  States 
Etty  V.  Hriilges 


European  Kru.  Co.  r.  Poor  194,  207 

Eustace  v.  Seamen  f>'^ 

Evangelical  Ass'n's  App.         730,  733,  <4« 
Evangelical  Synod  i'.  Schoeneich  8--i» 

Evans  I'.  Bagwell 


[Eelerences  are  to  Bections.] 

G41  Ewing  v.  Furness 

232,  239  V.  Iligby 

194  V.  Osbaldiston 

222  V.  Stiannahan 

653,  GO"  I'.  Warner 

68ti  Exel  V.  Wallace 

104  Exeter  v.  Exeter 
590  t'.  Odiorne 

386,  386  n,  555  Kxton  v.  Scott 

178,  179  Eyre,  Jie 

438  V.  Dolphin 


Battle 
V.  Benyon 
V.  Bicknell 
V.  Caiman 
V.  Cheshire 
V.  Chew 
V.  Coventry 
V,  Davies 
V.  Ellis 
V.  Enloe 
V.  Evans 
V.  Gibson 
V.  Gillespie 
V.  Goodlett 
V.  Heilier 
V.  Islehart 
V.  Jackson 
V.  John 
V.  Kingsburj' 
V.  Kneeland 
V.  Knoar 
V,  Llewellyn 
V.  London 
V.  Massey 
V.  Potter 
V.  Russell 
V.  Scott 
V.  Secrest 
V.  Stokes 
V.  Tweedy 
Evans's  Estate 
Evarts  v.  Nason 
Evelyn  v.  Templar 
Everett  v.  Carr 
V.  Drew 
V.  Henry 
V.  Prytliieregch 
V.  Texas  M.  Ry.  Co. 
Everitt  v.  Everitt 
Evcrson  v.  Pitney 
Everston  v.  Mayhew 
Everts  v.  Agnes 

V.  Everts 
Evertson  r.  Tappan 
Evroy  v.  Nickolas 
Ewbank  r.  Paston 
Eweu  V.  Bannerman 

V.  Smith 

Ewer  V.  Corbett 

Ewers  r.  White's  Estate 

Ewing  V.  Barnes 

V.  Bass 

V.  Buckner 

VOL.  I.  —  e 


593 

97 

467,  828 

171,  438 

658 

188 

500 

818 

66 

202 

238 

358,  373 

127 

647 

232,  237 

584 

546,  547 

769 

259,  261 


Fitton 
V.  Marsden 
V.  Potter 
V.  Shaftesbury 

Eyrick  v.  Hetrick 
Eyton  V.  Eyton 


Ixv 


891 

774 

231 

341,  346,  858 

104 

359 

186 

299,  305,  307 

103 

517 

196,  538 

5116 

160,  395,  397 

187 

414,  505,  003,  631, 

694,  695,  724 

55, 259,  555 

183 


179 

647,  649 

171, 184,  185,  192 

697 

615,  618,  619 

243 

104 

580 

640 

885 

558,  559 

418,  419,  894 

863,  918 

107,  109,  111 

697,  705,  720,  722,  733 

926 

195 

275,  816,  818 

828 

104 

918 

828 

220,  221 

520 

428 

53 

235,  239 

714 

655,  661 

225,  809,  810,  812 

8(i3 

378 

189 

260 


Fadness  v.  Braunborg 
Fagg's  Case 

Fahnestock  v.  Fahnestock 
Fairbanks  v.  Lamson 
Fairchild  v.  Edson 
Fairfield  S.  Bank  v.  Small 
Fairhurst  v.  Lewis 
Fairman  v.  Bavin 

V.  Green 
Fairtitle  v.  Gilbert 
Falk  V.  Turner 
^„..    Falkland  v.  Bertie 
499  I  Falkner  v.  Equitable  Society 

V.  O'Brien 

V.  Wynford 
Fall  t'.  Simmons 
Fallen,  In  Matter  of 
Faloon  i'.  Flannery 
Fambro  v.  Gantt 
Fane  v.  Devonshire 

V.  Fane 
Fanning  v.  Ker 
Fansler  v.  Jones 
Fant  V.  Dunbar 
Farie's  Appeal 
Paris  V.  Dunn 
Farley  v.  Blood 

V.  Bryant 

V.  Bu'cklin 
V.  Kittson 


730 

218 

448,  451 

701.  748 

171,  720,  729 

82 

148 

206 

616,  618 

750 

204,  210 

871 

786 

192 

248,  250 

471,  918 

54 

254 

225 

189 

94 

602  d 

1.38 

463 

652,  668 

1.37 

127 

184,  186 

398 

206 


V.  St.  Paul,  M.  &  M.  R.  R.  Co.       427 
V.  Shippen  64,  71,  131,  136 


Farlow  v.  Farlow 
Farmer  v.  Compton 

V.  Dean 

V.  Farmer 

V.  Lesley 

V.  Martin 
Farmers'  Bank  v.  Douglass 

r.  King 

V.  Waynian 
Farmers'  Loan,  &c.  Co.  ■ 
Bank 

r.  Ilondrickson 

t'.  Hughes 

r.  Lake  St.  Ry.  Co. 

V.  Maltby 


253 
517 
780 
192 

591 

511a 

187,  590 

127,  128 

242 

Commercial 

759 
759 
275 
242,  885 
221 


Ixvi 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Farmers'  Loan  &c.  Co.  v.  New  York 

&  N.  Ry.  Co.  242 
Farmer's  Nat.  Bank  v.  Moran         312,  520 

Farmers  and  Traders'  Bank  v.  Kimball 

Milling  Co.  I«f5 
Farnam  v.  Brooks    178,  195,  206,  210,  2;i0, 

855,  803 

Farneyhough  v.  Dickersoa  918 

Farnsworth  v.  Child  223 

Farquliarson  v.  Eichelberger  314 

V.  Seton  876 

Farr  v.  Farr  229,  230 

V.  Gilreath  300 

V.  Sherriffe  886,  888,  903  a 

Farrance  v.  Viley  G24 

Farrand  v.  Beshoar  79 

V.  Land  Co.  861 

Farrant  v.  Blanchford  8.jl 

Farrar  r.  Barraclough  457,  467 

V.  Farley  205 

Farrell  v.  Lloyd  137,  142 

V.  Smith  294,  928 

Farrelly  v.  Ladd  343,  843 

Farrier  v.  Cames  891 

Farringer  v.  Ramsey  126,  137 

Farrington  v.  Barr  162 

V.  Knightly  17,  154 

V.  Putnam  160,  699 

Farris  v.  Dunn  223 

Farwell  v.  Kloman  828 

Fassit  V.  Phillips  592 

Fast  V.  McPherson  212 

Fatheree  v.  Fletcher  143 

Fatjo  V.  Swasey  274 

Faucett  v.  Faucett  195 

Faulkner  v.  Daniel  347 

V.  Davis  249 

V.  Hendy  828 

Fawcett  v.  Fawcett  145,  863 

V.  Gere  212 

V.  Lowther  327 

Fawell  V.  Heelis  236,  239 

Fawknerv.  Watts  612 

Fay  V.  Fay  75,  126,  308 

V.  Howe  471 

V.  Morrison  147 

V.  Petis  757 

t'.  Slaughter  739 

V.  Taft  121 

Feamster  v.  Feamster  828 

Fear  v.  Bartlett  242 

Fearns  v.  Young       449,  450,  547,  549,  910 

Fearon  v.  Desbrisay  511  n 

V.  Webb  23,  384 

Fears  v.  Brooks         646,  647,  649,  655,  660 

Featherstonaugh  v.  Fenwick  196,  453,  470, 

538 

Feedej-'s  App.  313 

Feeney  v.  Howard  142 

Fehliiiger  v.  Wood  437  a 

Feistal  V.  King's  College  69 

Felix  V.  Patrick  60,  861 

Fell  V.  Brown  71,  72,  883 

V.  Lutwidge  900 

Fellows  V.  Dow  347 

V.  Gwydvr  172 

V.  Heerm'ans  95,  318,  334 

V.  Mitchell          411,  416,  446,  809,  849 

».  Tann  646 


Fellrath  v.  Peoria  G.  S.  Ass'n  848 

Feltham  v.  Clark  438 

V.  Turner  511 

Felton  V.  Deal  757 

Feudall  v.  Nash  619 

Fenner  v.  Tucker  602  r 

Fennimore  v.  Fennimore  421 

Fenno  v.  Sayre  231 

Fenwick  v.  Chapman  571 

V.  Greenwell       248,  250,  260,  417,  845 

Ferchen  v.  Arndt  828 

F'erdey's  Appeal  313 

F^erebee  v.  Pritchard  122 

Ferebere  v.  Proctor  765 

Fergerson  v.  Fergerson  184 

Fergus  v.  Gove  601 

Ferguson  v.  Franklin  55 

V.  Hass  226 

V.  Livingston  862 

V.  Sutphen  133 

V.  Tadman  122 

V.  Williamson  172 

Ferraby  v.  Hobson  528 

Ferraria  v.  Vasconcellos  733 

Ferraris  v.  Hertford  93 

Ferrars  v.  Cherry  217,  828,  830 

Ferres  v.  F'erres  189 

Ferrier  v.  Trepannier  437  a 

Ferrin  v.  Errol  828 

Ferris  v.  Gibson  380 

V.  Henderson  229,  230 

Ferry  v.  Laible  121,  511  6 

Ferson  v.  Sanger  173 

Fesmire  v.  Shannon  421 

F^esmire's  Estate  415,  421,  848 

Festing  c.  Allen  385 

Festorazzi  v.  St.  Joseph's  Cath.  Church 

715,  729 

Fettiplace  v.  Gorges  655,  668 

Feversham  v.  Ryder  704,  709 

Fiddler  v.  Higgins  611 

Fidelity  Ins.  Co.'s  App.  903  a 

Field  r.  Arrowsmith  195,  240,  200,  280, 

602  e,  602  v 

V.  Brown  611 

V.  Donoughmore  593,  600,  927 

V.  Evans  20,  670 

V.  Field  738 

V.  Girard  College  734 

V.  Lonsdale  144,  165 

t'.  Ma3'or  of  New  York  68 

V.  Moore  34 

V.  Peckett  439,  479,  570 

V.  Schieffelin      225,  608,  610,  809,  812, 

814 

V.  Sowle  658,  661 

V.  Wilbur  477,  .526 

V.  Wilson  229,  230 

Field's  Mortgage  338 

Fields  V.  Dennen  2-37 

Fi field  V.  Van  Wvck  720 

Fifth  National  Bank  v.  Hyde  Park     815  c 

Filbv  V.Miller  218 

Filch  V.  Weber  157 

Filler  v.  Tyler  658 

Fillman  v.  Divers  127 

Fillmer  v.  Gott  189 

Finch  I'.  Finch    126,  143, 145,  146,  147,  468 

Finch  V.  Hollinsworth  250,  258 


INDEX   TO   CASES   CITED. 
[References  are  to  sectiona.] 


Ixvii 


Finch  r.  Raynad  918 

V.  Shaw  222 

V.  Winchelsea  108,  122 

Finch's  Case  13,  14,  7G,  241,  34G,  347 

Finilen  v.  Stephens  123,  U07 

Findlay  t;.  Kiddle  35'J,  370 

Findley  v.  I'atterson  201 

Fink  V.  Fink  748 

Finlay  v.  Darling  841 

V.  Howard  275,  282 

Finley  t>.  Hunter  715 

V.  Isett  83 

t'.  Jones  891 

Finn  v.  Holin  328' 

Finney  v.  Cochran  8G3 

Finnev's  Kstate,  In  re  337 

Fimiiii  i".  Pulhain  900 

First    baptist  Society  in  Andover  v. 

Hazen                  "  312,  520 
First  Congregational  Society  of  South- 

ington  V.  Atwater  43,  46,  714 
First    Constitutional     Presbyterian 

Church  V.  Cong.  Soc.  733 
First  Mortgage  Bondholders  v.  Mays- 

ville,  &c.  Kaihvay  75!) 

First  National  liank,  In  re  678 

V.  Dwelley  815  6 

V.  Fries  76,  163 

V.  Michigan  Trust  Co.  511  6 

V.  Miller  729 

V.  Nat'l  Broadway  Bank  72,  223,  511  6 

V.  Owen               "  918 

V.  Salem  Capital  F.  M.  Co.  238 

V.  Smith  594 

First  Nat.  Ins.  Co.  v.  Salisbury  873 

First  Parish  in  Sutton  v.  Cole  43 

Fischbeck  v.  Gross  181,  915 

Fischili  r.  Dnniaresley  134 

Fish  V.  Howland  232,  237 

V.  Miller  851 

17.  Prior  305 

V.  Wilson  863 

Fishbourne,  In  re  806 

Fisher  r.  Bassett  602 ee 

V.  Boody  172 

V.  Dickenson  277 

V.  Fields  82,  312,  315,  320 

V.  Filbert  648 

V.  Fisher  556 

V.  Fobes  142 

V.  Johnson  238,  239 

«;.  Knox  438 

V.  Shropshire  233 

V.  Smart  918 

V.  Taylor  918 

r.  Webster  380 

V.  Wigg  920 

t'.  Worth  594 

Fisher's  Will,  Tn  re  284 

Fisk  V.  Att.-Gen.  698,  706,  726 

V.  Keen  380 

V.  Pafton  127 

V.  Sarber  205,  209,  538 

V.  Stubbs  275 

Fiske  V.  White  748 

Fitch  V.  Aver  649 

V.  Fitch  188 

Fitler  v.  Maitland  591 

Fitzer  v.  Fitzer  673 


Fitzgerald,  /n  re 

817 

V.  Chapman 

627 

V.  Faucouberge 

511c 

V.  Field 

580 

V.  Fitzgerald 

79,  162,  901 

V.  Jervoise 

771 

V  Jones 

908 

V.  O'Flaherty 

901 

V.  Peck 

184 

V.  Pringie     453,  460,  461,  898,  901,  902 

f.  Rainsford  192,  538 

V.  Topping  334 

V.  Vestal  C8 

Fitzgibbon  v.  Blake  657,  671 

V.  Scanlan  196,  538 

Fitzpatrick  v.  Fitzgerald  17,  328 

I'.  Fitzpatrick  602  r 

Fitzroy  v.  Howard  533 

Fitzsimmons  v.  Joslin  172,  179 

Flack  V.  Holm  72 

Flagg  V.  Ely  454 

V.  Mann  135,  218,  221,  226, 602  d,  843, 

844 

Flanapan  v.  Nolan  462,  900,  901 

Flanders  v.  Clark  249,  505,  510 

V.  Thompson  239 

Flarty  v.  Odium  249,  505,  510 

Flavett  I'.  Foster  423 

Fleming  v.  Armstrong  671 

V.  Buchanan  573 

V.  Cuthbert  803 

V.  Donohoe  75,  143 

V.  Gilmer  858 

V.  McHale  133 

V.  Page  828 

V.  Teran  205 

r.  Wilson  918 

Fletcher  I'.  Ashbarner  150 

V.  Ashley  213 

V.  Bartlett  206 

V.  Fletcher  98,  103,  111,  672 

V.  Green  461,  847,  848,  849.  876 

V.  Peck  218,  222 

V.  Stephenson  551,  924 

V.  Walker  443,  463,  900 

V.  W 11  lard  226 

Flint  V.  Clinton  Co.       260,  262,  264,  602  e 

V.  Hughes  116 

V.  Sheldon  302 

t".  Steadman  66 

r.  Warren  157 

Florentine  r.  Barton  610 

V.  Wilson  672 

Flory  t".  Becker  640 

V.  Houck  122 

Flournoy  v.  Johnson  349,  353 

Flower  r.  Buller  658 

Flowers  r.  Franklin  546 

Floyd  V.  Barker  160 

V.  Floyd  918 

Fioyer  v.  fcankes  383 

'v.  Gilliam  262 

V.  Sherrard  183,  187 

Flud  r.  Kumsey  244 

Fluke  V.  Fluke  766,  768 

Flynn  v.  Flynn  .324 

Foden  v.  Finney  633 

Fogarty  i'.  Sawyer  602  c,  602  d,  602 g 

Fogg  V.  Middleton  98 


Ixviii 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Foley  V.  Burnell  373.  541 

V.  Hill  855 

V.  Parry  112 

V.  Wontner  284,  414,  490,  505 

Foliambe  v.  Willoughby  615 

Foliansbee  v.  Kilbreth  127,  135 

Follett  V.  Badeau  82,  134 

V.  Follett  511  f) 

V.  Tyrer  324 

Fonda  v.  Penfield  383 

Fontain  v.  Ravenell         499,  687,  721,  724, 

729,  731 

Foose  V.  Whitmore  114 

Foote  V.  Br3-ant  137,  142 

V.  Colvin  126 

V.  Foote  179 

Foote's  App.  545,  556 

Forbes  v.  Allen  471 

V.  Ball  112,  248,  256 

V.  Forbes  704 

V.  Hall  223 

V.  Halsey  205 

V.  Lathrop  815  a 

V.  Linwood  593 

V.  Moffatt  347 

V.  Peacock         499,  501,  597,  765,  786, 

790,  795,  796,  800,  801,  802,  812 

V.  Phillips  639 

V.  Ross  453,  461,  462,  408 

V.  Ware  471 

Ford  V.  Battey  119 

V.  Belmont  765 

V.  Cook  858,  890  a 

V.  Ford  448,  706 

V.  Hopkins  837 

V.  Lewis  131 

V.  Rvan  794 

Forde  iJ.Herron  187,  602  s 

Fordham  v.  Wallis  932 

Fordvce  v.  Bridges  248,  251,  255,  503 

i.  Willis               29,  75,  76,  77,  86,  102 

Forest  v.  Forest  100 

Forman  v.  Marsh  610,  611 

Forney  v.  Remey  163 

Forney's  Estate  520 

Forrest  v.  Elwes  466,  905 

V.  Porch  66 

V.  Robinson  660 

Forrester  v.  Moore  126 

Forshaw  v.  Higginson  476,  482,  786 

Forster  v.  Blackstone  438 

V.  Cockerell  438 

V.  Hale  79,  81,  82,  83,  86 

V.  Hoggart  602  c 

V.  Ridley  906 

Forsvthe  v.  Clark  126,  133,  226 

Fort'i;.  Fort  639 

Fortescue  v.  Barnett  98,  101,  247  a,  438 

Forward  v.  Armstead  97 

Fosbrook  v.  Balguy  196,  428 

Foscue  ti.  Foscue  863 

Fosdick  V.  Fosdick  393 

V.  Hempstead  699 

Foss  V.  Crisp  55 

V.  Foss  665 

V.  Sowles  264 

Foster  v.  Athenaeum  Trustees  126,  133,  237 

V.  Bailey  910 

V.  Boston  961 


Foster  v.  Charles 

171 

t).  Coe 

318 

V.  Craige 

501 

V.  Crenshaw 

562 

V.  Davies 

276,  441 

t'.  Dawber 

270,  271 

V.  Deacon 

122 

V.  Dennison 

299 

V.  Durant 

142 

V.  Foster 

144,  815  a 

V.  Glover 

299 

V.  Goree 

602  p 

V.  Gover 

602  (Id 

V.  Hodgson 

862 

V.  Kerr 

649 

V.  Latham 

585 

V.  Marriott 

538 

V.  McMahon 

928 

V.  Mix 

438 

V.  Pennsylvania 

Ins.  Co. 

645 

V.  Roberts 

188 

V.  Saco  Manuf.  Co. 

591 

V.  Willson 

114 

Foster's  Will,  In  re 

282,  453 

Fothergill  v.  Fotlierg 

ill 

107 

Fountain  Spring  Park  Co.  v.  Roberts    207 

Fountaine  v.  Pellett  526,  554,  912,  913,915 

Fourdrin  v.  Gowdy  64 

Fournier  v.  Ingraham  918 

Fourth  St.  Nat.  Bank  v.  Yardley  87 

Fouvergue  v.  New  Orleans  182 

Foveaux,  In  re  705 

Fowey's  Charities  282 

Fowke  V.  Slaughter  133,  135 

Fowle  V.  Merrill  199 

Fowler,  In  re  275 

V.  Bowery  S.  Bank  559 

V.  Colt  462 

V.  Fowler  6G5 

V.  Garlike  112,  159,  711,  712 

V.  Hunter  117,  251 

V.  Ingersoll  382 

V.  Jones  308 

V.  Revnall  453,  461,  466.  875 

V.  Rust  232,  237 

V.  True  828 

V.  Webster  126 

V.  Willoughby  571 

V.  Wyatt  922,  923 

Fowler's  Appeal  72 

Fox  V.  Adams  592 

V.  Citizens'  Bank  &  Trust  Co.         225 

V.  Cook  863 

V.  Dougherty  127 

V.  Fox  112,  113,  119,  144,  146 

V.  Jones  679 

V.  Mackreth  180, 189, 195, 197,  201, 206 

V.  Phelps  583 

V.  Rumery  511  a 

V.  Storrs  312 

V.  Tay  863 

V.  Wright  188 

Foxworth  V.  White  197 

Fozier  v.  Andrews  900,  901 

Frail  V.  Ellis  235,  239 

Frampton  v.  Frampton  509  c,  672,  673 

France  v.  Woods  443 

Francis  «.  Brooking  636 

V.  Clemen  570 


INDEX   TO   CASES   CITED. 
[Eeferences  are  to  sections.] 


Ixix 


Francis  v.  Cline  127 

V.  Francis  453,  4C1,  U04 

V.  Gower  ^^'^ 

V.  Harrison  27'J,  875 

V.  Ilazelrigg's  Executors  2iJ7 

V.  lioades  137 

c.  Wigzell  658,  f!f;2 

V.  Wilkinson  143,  1«'J 

Franciscus  v.  Ueigart  2'J'J,  -'510 

Franco  v.  Holton  214 

V.  Franco  419,  633,  884 

Frank  i'.  Frank  185 

Frank's  App.  420 

1-rauklin  v.  Armfield  694,  737,  748 

V.  IJank  of  England  242 

V.  Firth  408 

V.Green      602 1,  602  c/d,  615,  618,  61 'J, 

015 

17.  Haves  275 

V.  Mctlroy  4ti8 

r.  Osgood  411,499,602  m 

Franklin's  Appeal  600 

Franklin  Bank  v.  Cooper  179 

Franklin  S.  Bank  v.  Taylor  873 

Frankly  n.  Ex  parte  456 

F'ranks  v.  Price  372 

Frary  v.  Booth  660 

Fraser  v.  Murdoch  485 

I'rauenfeldt's  Estate  640 

Frayser  v.  Kd.  Co.  438 

Frazee  v.  Frazee  658 

Frazer  r.  Bailie  633 

17.  Beville  541 

V.  Moore  862 

V.  Page  476  a 

V.  Palmer  432,  902 

Frazier  v.  Brownlow  660 

V.  Center  32,  661 

V.  Frazier  65, 160,  251,  255 

17.  Smart  918 

17.  Vaux  918 

Freake  v.  Cranefeldt  558,  559 

Frederic  v.  Haas  126,  132 

V.  Hatwell  667 

Freedman's  S.  Co.  v.  Earle  346 

Freelaud  v.  Pearson  254,  258 

Freeman  v.  Butters  28S 

V.  Cook        184,  540,  541,  843,  844,  027 

17.  Curtis  184 

17.  Fairlee  463,  821,  826,  827,  905 

17.  Flood  670,  671 

17.  Freeman  75,  77,  647 

17.  Harwood  1''5 

17.  Kelly  127, 133,  137,  138 

17.  Mebane  238 

17.  Moore  667 

17.  Parsley  632,  633 

17.  Prendergast  873 

17.  Tatham  85 

11.  Thompkins  915 

Freeman's  Estate  511  b,  769 

Freemoult  r.  Dedire  122 

Freeport  v.  Bartol  83 

Freer  v.  Lake  82 

Frekc  v.  Lord  Carbery  395 

Frelick  v.  Turner  618 

Frelinghuvsen  17.  Nugent  828 

Freme  17.  Woods  443,  914 

French  v.  Barron  904 


French  v.  Davidson  507,  508,  511 

17.  French  191,  299 

17.  Griswold  College  907 

17.  Harrison  835 

17.  Hobson  419,  454,  851 

17.  St.  George  533 

Freto  i>.  Brown  613 

Frewen  v.  Frewen  873 

Krev  V.  Frey  462,  000 
FreVer,  In  re  415,  416,  418,  890 
FreVvogle  t7.  Hughes     304,  310  a,  311,  652 

Frick  Ca).  t;.  'laylur  82 

Frickett  v.  Durham  133 

Friend  v.  Young  246 

Frier  v.  Peacock  730 

Kriesenhahii  v.  Bushnell  467 

Frink  v.  McComb  202,  248 
Frith  17.  Cartland       433,  463,  835,  837,  863 

Fritts'  Estate  472 

Fromme  v.  Gray  903  a 

Frost,  In  re  382 

V.  Beekman  220,  221 

V.  Belmont  214 

Frothingham  t'.  March  602  r 

Fry  V.  Capper  671 

V.  Fry  487,  629,  771 

V.  Lane  184,  188 

17.  Tapson  404 

Frv's  Estate  511c 

Frye  v.  Porter  357,  514,  517 

V.  Shelbourne  580 

Fulbright  17.  Yoder  315 

Fullager  i-.  Clark  167 

Fullam  V.  Rose  669 

Fuller  17.  Bennett  222 

17.  Cushman  869 

17.  Dame  214 

17.  Johnson  770 

17.  Knight  770,  877,  884 

17.  O'Neil  779 

r.  Redman  481 

V.  Wilson  172 

Fuller's  Will  729 

Fulton  V.  Gilmore  922 

17.  Whitney  196 
Fulton  Bank  i7.  New  York  Coal  Co.       222 

Funk  V.  Eggleston  253 

17.  Lawson  82 

Furguson  t7.  Smith  654 

Furiam  i7.  Saunders  521 

Furman  r.  Coe  624,  914 

V.  Fisher  82,  259 

17.  Rapelje  848 

Furness  v.  Caterham  Ry.  752 

Furrin  i'.  Newcombe  160 

Fursaker  v.  Robinson  109,  111 

Fussell  t'.  Dowding  920 

Fust,  Ex  parte  457 

Futter  17.  Jackson  826,  827 
Fyler  v.  Fvler           246,  466,  847,  849,  907 

V.  Pole  862 


G. 


Gabb  17.  Prendergast 
Gabee  v.  Sneed 
Gabriel  i'.  Sturgis 
I  Gadsden,  Exparte 


66 
232 

901 
812 


Ixx 


INDEX   TO   CASES   CITED. 


[References  are  to  sections.] 


Gadsden  v.  Whaley 
Gaffee,  In  re 
Gage,  In  re 
Gage  V.  Dauchy 

V.  Gage 

V.  Rogers 
Gaillard  v   I'ardon 
Gaines  v.  Chew 

V.  Drakeford 

V.  Hennen 

V.  Poor 
Gainus  v.  Cannon 
Galbraith  v.  Elder 
Gale  I'.  Coburn 

V.  Gale 

V.  Ilarby 

V.  Mensing 
Gale's  Petition 

Gallagher  v.  Yosemite  M.  Co. 
Gallagher's  Appeal 
Gallatian  v.  Cunningham 

V.  Erwin 
Gallego  V.  Att.-Gen. 

V.  Gallego 
Galley  v.  Panther 
Galliers  v.  Moss 
Gallion  v.  McCaslin 
Galloway  v.  Finley 

V.  Hamilton 
Galway  v.  Butler 
Gambell  v.  Trippe 
Gamber  v.  Gamber 
Gamble  v.  Queen's  County  W.  Co. 
Gambril  v.  Gambril 

V.  Roberts 
Game,  In  re 
Gandy  v.  Gandy 
Gann  v.  Chester 
Gannon  v.  McGuire 

V.  Ruffin 

V.  White 
Gantert,  Re 
Gapen  v.  Gapen 
Gardenhire  v.  Hind3 
Gardiner  I'.  Tyler 
Gardner,  In  re 
Gardner  v.  Adams 

V.  Astor 

V.  Barker 

V.  Brown 

V.  Downes 

V.  Fell 

V.  Gardner 


V.  Heyer 

V.  Hooper 

V.  Marshall 

I'.  Merritt 

V.  Ogden 

V.  Rowe 

V.  Stevens 

V.  Walker 

V.  Weeks 
Gardner  Bank  v.  Wheaton 
Garesche  t'.  Levering  Inv.  Co 
Garey  v.  Whittingham 
Garfield  v.  Hatmaker 
Garf oot  v.  Garfoot 


79,  86 
653,  670,  071 
380 
679 
142 
891 
361 
126,  142,  182,  183 
137 
183 
672 
76,  127 
538 
299 
169 
127,  137 
602  a  a 
275 
917 
570 
200 
218 
724,  748 
627,  643 
500 
337 
218 
232 
234 
888 
248 
677 
242 
552,  554 
553 
450 
875 
238,  239 
97 
843 
102 
448 
863 
312,  648 
918 
114 
69 
347 
118 
262 
276,  476  a,  922,  928 
871 
347,  560,  598,  647,;660, 
666,  678,  680,  795, 
797 
66 
324 
636 
97 
203 
58,  77,  82,  86 
360 
629 
277 
137 
5116 
903  rt 
144 
121 


Garforth  v.  Bradley 
Garland,  Ex  parte 

V.  Harrington 

V.  Loring 
Garner  v.  Dowling 

V.  Garner         38,  95, 

V.  Ger.  L.  Ins.  Co. 

V.  Moore 

V.  Stroude 
Garnett  v.  Armstrong 

V.  Macon     225,  562, 

Garniss  v.  Gardner 
Garnistone  v.  Gaunt 
Garnous  v.  Knight 
Garnsey  v.  Gardner 

V.  Gothard 

V.  Mundy 
Garr  v.  Drake 
Garrard  v.  Fankell 

V.  Lauderdale       98, 


635,  640 

454 

438 

610 

259 

,  109,  240,  359,  370 

104 

438,  474 

891 

347 

598,  794,  795,  800, 

801 

462,  463,  468,  471 

581,  605 

103 

247  a 

260 

104 

603 

186 

100,  108,  585,  593, 

596,  597 


V.  Railroad  Co. 

225,  810 

V.  Tuck 

354,  866 

Garrett  v.  Carr 

468 

V.  Garrett 

126,  127,  836 

V.  Noble 

771 

V.  Pretty 

512,  513 

V.  Wilkinson 

144 

Garrick  v.  Taylor 

1.30,  139 

Garrison  v.  Little 

384,  705 

Garrow  v.  Davis 

69 

Garson  v.  Green 

232,  236,  237,  239 

Garth  v.  Baldwin 

305,  315,  357,  358 

V.  Cotton 

871 

V.  Townsend 

254 

Gartland  v.  Mayatt 

294 

Gartside  v.  Isherwood 

178,  189 

V.  Gartside 

275,  875 

V.  Radcliffe 

183,187 

Garvey  v.  McDavitt 

386  a 

V.  Owens 

891,  910 

Garvin  v.  Williams 

200 

Garwood  r.  Eldridge 

226 

Gary  v.  Colgin 

782 

'v.  ISIay 

601 

V.  Whittingham 

889 

Gascoigne  v.  Thwing 

137 

Gashe  v.  Young 

206 

Gaskell  v.  Chambers 

206,  207 

V.  Gaskell 

165,  262 

Gaskill  V.  Green 

277 

Gasque  v.  Small 

187 

Gass  V.  Gass 

126 

V.  Mason 

194 

I'.  Porter 

783 

V.  Ross 

748 

V.  Wilhite  384,  705 

715, 724,  728,  730, 

748 

Gassett  i*.  Grout 

627,  632 

Gaston  v.  Frankum 

657 

Gaston's  Trust 

821 

Gate  V.  Debrett 

602  e 

Gatens  v.  Madderly 

648 

Gates  V.  Jones 

710 

Gault  V.  Saffin 

677 

Gaunt  I'.  Taylor 

886,  888 

Gause  v.  Hale 

361 

Gaves  v,  Hickson 

441 

INDEX   TO   CASES   CITED. 
[References  are  to  aections.] 


Ixxi 


Gay  V.  Ballou 

613 

V.  Edwards 

8G.'i 

Gayden  i'.  Gayden 

4-.'G 

Gaylord  r.  Lafayette 

104 

Gaylords  v.  Kelshaw 

8M 

Gazzam  r.  I'oyntz 

590,  b'.)2 

Geary  v.  Ikarcroft 

325 

Gedtfes  r.  I'enninpton 

174 

Geddings  v.  Geddings 

12'J 

Gee  V.  Gee 

133 

V.  Liddell 

96 

V.  Thrailkill 

142 

Genet  v.  Beekman 

386  a 

I'.  Hunt 

511c 

V.  Talraadge 

608,  611 

Gent  V.  Harris 

636 

Gentry  r.  Law 

172 

I'.'  McKeynolds 

664 

George,  Jn  re 

615 

V.  Bank  of  England 

86 

V.  Braddock 

705 

V.  Goldsby 

639 

V.  Howard 

151 

V.  Lansley 

511c 

Georges  v.  Pye 

836 

Gerard  i'.  Buckley 

520 

Gerard  Ins.  Co.  i'.  Chambers 

305 

Gerber  v.  Bauerline 

613 

German  v.  Gabbald 

75 

German  Am.  Sem.  v.  Keifer 

8G5 

German,  <S:c.  Assoc. 

730 

German,  &c.  Congr.  r.  Repler 

732 

German  Nat.  Bank  v.  Burns 

44 

Geroe  v.  Winter 

501 

Gerrard  v.  Gerrard 

578 

Gerrish  v.  New  Bedford  Inst,  for  Sav- 
ings 86,  99 
Gerrv  i'.  Stimson  78,  133, 162 
Gest"v.  Flock  499 
Gretman  v.  Beardsley  891 
V.  Getman  133 
Gevers  r.  Wright  367 
Geyer  v.  Branch  Bank  649,  651 
Gheen  v.  Osborn  556 
Ghiselin  v.  Ferguson  232,  238,  239 
Ghost  V.  Waller                 402,  444,  463,  806 
Gianella  v.  Momsen  828 
Gibboney  i'.  Kent  855 
Gibbons  i-.  Baddall  236,  239 
V.  Caunt  185 
V.  Mahon  545 
V.  Maltyard  693,  700,  701 
V.  Taylor  445,  847 
Gibbs  V.  Bunch  678 
V.  Cunningham  602  »,  780,  782 
V.  Guignard  262 
V.  Harding  672 
V.  Herring  421 
V.  Johnson  347 
V.  Marsh    38,  248,  253,  284,  499,  602  m 
V.  Kumsey           158, 159,  160,  507,  711 
V.  Smith  276 
Gibson  v.  Armstrong  151 
V.  Barbour  195 
V.  Bott  551,  915 
V.  Burgess  72 
V.  Crehore  918 
V.  Foote  79,  147 
V.  Gossom  202 


Gibson  v.  Green  225 

V.  Jeves  187,  195,  202 
V.  Joiies       602  (,  602  x,  602  aa,  602  et, 

782 

V.  McCall  720,  748 

V.  McCormick  562 

r.  Montford  308,  312,  315,  317 

V.  liussell  189,  204,  210 

V.  Scudmore  605 

V.  Winter  328 

Gibson's  Case  240,  277,  780,  918 

Giddings  v.  Giddings  196,  638 

r.  Palmer  82 

Gidney  v.  Moore  171 

GifTen  v.  Tavlor  162,  166 

Gifford  V.  Bennett  828 

V.  Hort  856 

V.  Man  ley  260 

Gift  V.  Anderson  602  dd 

Gilbert  v.  Bennett  117 

V.  Chapin  113,  251 

V.  Colt  72 

V.  Coolev  60266 

V.  Gilbert  142,  184 

V.  Kolb  453 

V.  Lewis  648,  649 

r.  Overton  101,  102,  105 

r.  Sleeper  828,  863 

t'.  Stockman  212 

V.  SutlifE  918 

Gilbert's  App.  927 

Gilbertson  v.  Gilbertson  908 

Gilchrist,  Jix  parte  646 

r.  Brown  133,  147 

V.  Cator  634 

V.  Stevenson  100,  104,  879,  921 

Giles  V.  Anslow  114,  166 

Gill,  In  re  917 

V.  Att.-Gen.  417,  422 

V.  Carmine  437  a 

V.  Logan  312 

r.  Lyon  602  ee 

Gillam  i-.  Taylor  699 

Gillbrand  r.  "Alexander  924 

V.  Goold  582,  772 

Gillespie  r.  Burleson  648,  649 

V.  Moore  186 

V.  Smith  248,  591,  774,  779 

V.  Somerville  324 

Gillett  V.  Hickling  602 

I'.  Peppercorne  206 

V.  Stanley  33 

V.  Wrav  514 

Gillette  v.  Wilev  855 

Gilliland  v.  Gilfiland  147 

Gilman  v.  Hamilton  694,  724.  728,  733,  748 

Gilman  C.  ic  S.  K.  R.  Co.  f.  Kelly        207 

Gilman  v.  Brown      232,  234,  235,'  236,  237 

f.  Healev  129 

V.  McArdle  86 

Gilman  Linseed  Oil  Co.  r.  Norton  206 

Gilmer  v.  Billings^  863 

Gilmore  i".  Ham  863 

V.  Johnson  172 

V.  Tuttle  918 

Gil  Patrick  i-.  Glidden  171,  245 

Gilruth  V.  Decell  846 

Gindrat    v.  Montgomery  Gas    Light 

Co.  611  c 


Ixxii 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Girard  Ins.  Co.  v.  Chambers  555 

Girard  Life  Ins.  Co.  r.  Chambers        380  a 

Girard  Will  Case  C97 

Girard,  &c.  v.  Philadelphia  742,  748 

Gisborn  v.  Charter  Oak  L.  Ins.  Co.         79, 

206,  863,  910,  lil5 

Gist  V.  Frazier  187,  192 

Gifting  V.  Steel  571 

Gizelnian  v.  Starr  494 

Gladding  v.  Yapp  150 

Gladdon  v.  Stoneman  816,  818 

Gladsden  v.  Desportes  358 

Gladstone  i'.  Hadwen  58 

Glaister  v.  Hewer  144,  626,  628,  639 

Glanys,  Ex  parte  58 

Glaser  v.  Priest  242 

Glass  V.  Gilbert  863 

V.  Hulbert  167 

V.  Oxenham  877 

V.  Ramsey  894 

V.  Warwick  662 

Glasscock  v.  Glasscock  238 

V.  Minor  175 

Glaze  V.  Drayton  231 

Gleaves  v.  Paine  633 

Glegg  V.  Edmondson  869 

Glen  V.  Fisher  575,  576,  627 

V.  McKim  415,  419,  420 

Glengall  i'.  Barnard  547 

Glenn  v.  Hill  869 

V.  Randall  126 

Glenorchv  v.  Bosville  357,  359,  369 

Gliddon  v.  Taylor  678 

Glidewell  v.  Shaugh  126 

Glissen  v.  Ogden  201 

Gloucester  v.  Wood  112,  157 

Glover  v.  Alcott  678 

V.  Condell  378 

V.  Hare  648 

V.  Monckton  315 

V.  Stamps  890  a 

Glover,  Appellant  60 

Glyn  V.  Locke  597,  794 

Goad  V.  Montgomery  764 

Gochenauer  o.  Froelick  511 

Goddard  v.  Carlisle  202 

V.  Hapgood  592 

V.  Pomeroy  748 

V.  Snow  213 

Godden  v.  Crowhurst  386  b,  555 

Godfrey  v.  Dixon  64 

V.  Faulkner  452 

V.  Megahan  658 

V.  Walker  733 

Coding,  Ex  parte  780 

Godolphin  V.  Godolphin  48,  248,  489 

Godsall  V.  Webb  102,  105 

Godschalk  v.  Fulmer  79 

Godwin  t'.  Younge  262 

Goeh ring's  App.  708 

Goelz  V.  Goelz  147 

Goepp's  App.  128 

Goforth  V.  Goforth  124 

Going  V.  Emery       499,  694,  701,  720,  724, 

748,  766 

Gold  V.  Death  222 

Golder  v.  Dressier  284,  287,  499 

Golding  V.  Yapp  94 

Goldsmid  v.  Goldsmid  519 


Goldsmid  v.  Stonehewer  875 

Goldsmith  v.  Goldsmith  82,  162,  245 

V.  Osborne  602  o,  602  cc 

V.  Swift  545 

Goldstein  v.  Goldstein  828 

Goleborn  v.  Alcock  218 

Golson  V.  Dunlap  195 

Gomez  v.  Gomez  529,  902 

V.  Tradesman's  Bank  82, 126,  133,  322 

Gomley  v.  Wood  432,  9(14 

GoocliV.  Vaughan  770 

Goochenaur's  Estate  628,  639 

Good  V.  Cheesman  593 

V.  Fichthorn  114 

V.  Harris  648,  651 

V.  McPherson  744 

Goodale  v.  Mooney  712 

Goode  V.  Comfort  70'J 

V.  Riley  184 

Goodell  V.  Freed  226 

Goodenough,  In  re  348 

V.  Goodenough  871 

V.  Tremanondo  451 

Goodere  v.  Lloyd  157 

Goodhill  V.  Brigham  511  b 

Goodhue  v.  Barnwell  245,  863 

V.  Clark  476  a,  928 

Goodier  v.  Edmunds  448,  506 

V.  Johnson  506 

Goodinge  v.  Goodinge  256 

Goodman  v.  Goodright  379 

V.  Sayers  185 

Goodrich  v.  Downes  591,  592 

V.  Milwaukee  304 

V.  Pendleton  863 

V.  Proctor  593,595,602.9 

Goodright  v.  Hodges         126,  137,  139,  143 

V.  Swvmmer  354 

V.  Wells  13,  300,  302,  347 

Goods  of  Ladv  Truro  93 

Goodson  V.  Ellison  269,  349,  351,  354, 

476  a,  883,  900,  901,  921,  922,  928 

Goodtitle  %t.  Cummings  218 

V.  Funucan  530 

V.  Jones  17,  328,  349,  350,  355,  520 

V.  Knott  308 

V.  Woods  379 

Goodwin  v.  Gosnell  846 

V.  Massachusetts   Loan  &   Trust 

Co.  790 

V.  Mix  786 

V.  Moore  633 

V.  Rice  122 

Goodyear  v.  Rumbeaugh  676,  677 

Gordillo  v.  Weguelin  752 

Gordon  V.  Adolphus  516 

V.  Frail  910 

V.  Gordon  107, 178,  185 

V.  Green  86 

V.  Preston  754 

V.  West  918 

Gore  V.  Bowser  260 

V.  Gibson  191 

j;.  Gore  379 

Gorge  V.  Chansey  482 

Gorge's  Case  144,  146 

Gorham  v.  Daniels  299 

Goring  v.  Bickerstaff  379 

V.  Nash  107, 108,  111,  367 


OBEX   TO   CASES  CITED. 
[References  are  to  sections.] 


Ixxiii 


Gorrell  v.  Alspaugh  112,  109 

Gorsucli  V.  Briscoe  284 

Gort  I'.  Att.-Gen.  7(M 
Gosling  V.  Carter      501,  795,  801,  802,  803, 

805,  808 

V.  Gosling  389 

Goss  t'.  Caliiil  678 

V.  Singleton     259,  273,  284,  602  m,  858 

r.  Tracy  182 

Gossniour  v.  Pigge  184 

Gosson  t'.  Ladd  312,  520 

Gott  V.  Cook  391,  508,  020 

Gough  V.  Andrews  579 

V.  Boult  256,  803 

V.  Butte  119 

V.  Crane  110 

V   Offlev  822 

Gould  v.  Choppell  441,  770 

V.  Emerson  84''J 

V.  Gould  182,  228 

V.  Harris  918 

V.  Haves  918 

V.  Ilifl  048 

V.  Lamb  312,  320,  598 

V.  Mather  499 

V.  Okeden  192 

V.  Tavlor  Orphan  Asylum  448 

Goulden  r.  Buckelew  602 j/" 

GouMer  v.  Camra  048 

Gouldsworth  v.  Knight  412,  413 

Gouverneur  i".  Elmendorf  220 

V.  Titus  891 

Gove  V.  Brazier  562 

IK  Knight  604 

V.  Learo}-d  102 

Governesses'"  Institute  v.  Rusbridger    824, 

903  a 

Governor  r.  Gridley  43 

Governor,  &c.  v.  Campbell  593 

Govin  i'.  l)e  Miranda  79,  703 

Gowdy  V.  Gordon  142 

Gower  v.  Eyre  447,  552 

V.  Grosvenor  359,  304,  373 

I'.  Mainwaring        19,20,255,507,510 

V.  Mead  564 

V.  Sternes  226 

Gowing  r.  Rich  149 

Gowland  v.  De  Faria  188,  807 

Grabowski's  Settlement  550  a 

Grace,  Ex  parte  190 

V.  Phillips  508 

V.  Webb  555 

Gracey  v.  Davis  594 

Graff  V.  Bonnett  380  a,  555 

V.  Castlemaa  225 

V.  De  Turk  254 

V.  Rohrer  143, 144,  102 

Graham  r.  Austin  419 

V.  Hirkenhead  Railway  870 

V.  Davidson  418,  419,  803 

V.  Donaldson  141 

V.  Dvster  243 

V.  Fitch  654 

V.  Fitts  779,  785 

V.  Graham  122,  307 

V.  King  602  /,  602  bb,  002/ 

V.  Lambert  82,  98 

V.  Lee  388 

V.  Little  92,  194,  785 


Graham  i'.  Londonderry 

532 

V.  Long 

49 

f.  Maxwell 

72 

V.  Pancoast 

194 

V.  Selbie 

142 

V.  Stewart 

359 

V.  Torrance 

803 

Gram  v.  Prussia 

737 

Cranberry  v.  Cranberry 

272,  918 

(Jrandom's  Estate 

699 

(irand  Prairie  Seminar}'  v.  Morgan         727 

Grange  v.  Tiving  52 

Granger,  Ex  parte  228 

V.  Bassett  545,  550 

Grangier  v.  Arden  98 

Grant,  In  re  37 

I'.  Bradstreet  171 

V.  Campbell  905 

V.  Dver  518 

V.  Grant  72,  647 

V.  Hook  598,  795,  798 

V.  Lunam  256,  507 

V.  Maclaren  275 

V.  Mills  217,  236,  239,  828 

V.  Odiorne  803 

V.  (iuick  72 

Grantham  v.  Grantham  145 

I'.  Hawley  07 

Granville  v.  McNeale  294,  499,  502 

Grapengether  v.  Fejervary  232,  239 

Gratwick's  Trust,  In  re  254,  008 

Gratz  V.  Cohen  190 

Gravenor  r.  Ilallam  706 

Graver's  Appeal  891,  894 

Graves  v.  Allen  65 

V.  Corbin  166 

V.  Dolphin  386 

V.  Dugan  133 

V.  Graves  116,  137,  162 

V.  McCall  232,  239 

V.  Safford  97 

V.  Spier  211 

V.  Strahan  266,  453 

V.  Ward  135 

V.  Waterman  195 

V.  White  171 

Graves's  Appeal  463,  468,  471 

Grav,  Ex  parte  332 

'v.  Bell  52 

I'.  Bridgeforth  380 

V.  Chaplin  885 

V.  Corbit  126,  321 

V.  Crockett  656 

V.  Dougherty  892 

V.  Farmers'  "Exchange  Bank  106 

V.  Fox  453,  459 

V.  Gray  96,  112,  255,  504 

V.  Ilaig  440,  821 

V.  Henderson  499,  501 

V.  Hill  593 

V.  Howard  602  p,  602  y,  602  r, 

602  y 

V.  Jordan  133 

V.  Lvnch  343,459,914 

V.  Mansfield  204,  206 

V.  Mathias  214 

r.  Jlerriam  122 

V.  Portland  Bank  545 

V.  Shaw  774 


Ixxiv 


INDEX   TO   CASES   CITED. 
[ReferenceB  are  to  sections.] 


Gray  v.  Thompson 

4fi8 

V.  Ulrich 

831 

I'.  Viers 

780 

v.  Woods 

180 

Gray's  Estate 

628, 

639 

Grayburn  v.  Clarkson 

439 

Graydon  v.  Graydon 

518 

v.  Hicks 

513, 

518 

Greason  v.  Keteltas 

528, 

530 

Great  Eastern  Ry.  Co.  v.  Turner  65 

Great  Falls  v.  Worster  72 
Great  Luxembourg  R.  Co.  v.  Maguay  207, 

430 
Great  Northern  Ry.  Co.,  Ex  parte         455 

Greatly  v.  Noble  658,  835 

Greaves,  Ex  parte  267 

V.  Atkinson  147 

V.  Simpson  358 

Greedy  v.  Lavender  629,  633,  903  n 

Green,  Ex  parte  332,  616,  618 

Green,  In  re  581 

V.  Allen  713,  721,  731,  748 

V.  Beatty  330 

V.  Belcher  581 

1?.  Blackwell  550,  700 

i\  Borland  286 

V.  Carlil  667 

V.  Gates  76 

i;.  Claiborne  768 

V.  Cook  134 

V.  Crockett  238 

V.  Demoss  238,  239 

V.  Dennis  42,  748 

V.  Dietrich  133,  137 

V.  Drummond  134 

V.  Ekins  362,  616,  622 

V.  Folgham  67 

V.  Green  322,  553,  672,  784 

V.  Howard  255,  257,  699 

V.  Lowe  560 

V.  Marsden  112, 113 

V.  McBeth  511 

V.  Morris  186 

V.  Morse  600 

V.  Mumford  331 

V.  Otte  636 

V.  Pigot  480 

V.  Pledger  827 

V.  Putnev  913 

V.  Rutherforth  42,  743 

V.  Scranage  680 

V.  Smith  38,  238 

V.  Spicer  386,  555 

V.  Stephens  372 

V.  Thompson  187,  189 

V.  Trieber  592 

V.  Winter  206,  428,  526,  910, 

916 

Green's  Estate  918 

Greene  v.  Greene  477,  549,  729 

V.  Smith  545 

r.  Sprague  Manf'g  Co.  591 

Greenfield  v.  Vason  815  n 
Greenfield's  Estate        77,  98,  194,  202,  210 

Greenhillv.  Willis  438 

Greenhouse,  Ex  parte  275,  733 

Greening  v.  Fox  918 

Greenland  v.  Waddell  920 

Greenlaw  v.  Kent  129 


Greenlcaf  v.  Allen  891 

V.  Queen     602  i,  602  m,  602  p,  602  dd, 

780,  782 

Greenongh  v.  Welles  248,  500 

Greensboro  Nat.  Bank  v.  Gilmer  133 

Greensiade  v.  Dare  35 

Greenwell  v.  Greenwell  613,  616,  619 

Greenwood  v.  Coleman  312,  320 

V.  Roberts  385 

V.  Wakeford       268.  276,  280,  282,  460 

509,848,  884,  901,  924 

Greer  v.  Baughman  137 

V.  McBeth  783 

V.  Stoller  21 

Greetham  v.  Colton  789,  802,  803 

Greeville  v.  Browne  570 

Gregg  V.  Coates  121,  477,  540,  552 

V.  Currier  414 

V.  Gabbert  277,  913 

Gregory  v.  Gregory         228,  229,  416,  418, 

421 

V.  Henderson  298,  306,  307 

V.  Lockyer  663 

V.  Marks  639 

V.  Merchants'  National  Bank  82 

Greislev  v.  Chesterfield  550 

Grenfeil  v.  Dean  69 

V.  Girdlestone  86G 

Grenville  Academies,  Ex  parte        42,  282 

Greshani  r.  Ware  347 

Gresley  v.  Mousley  202,  869 

Greswold  c.  Marsham  347 

Grev,  Ee  671 

'v.  Grey  54, 126, 143, 145, 146, 147, 151, 

161 

Gridley  v.  Andrews  569,  570 

Grier  v.  Grier  361 

Grier's  Appeal  607 

Grierson  v.  Eyre  871 

Grieves  v.  Case  701 

Grievson  v.  Kirsopp  248,  249,  250,  258 

Grilfin,  Ex  parte  404,  411,  417,  441 

Griffin,  Be  87 

V.  Barnev  591,  918 

r.  Blanchard  237 

V.  Camack  232,  238 

V.  De  Veuelle  189,  193 

V.  Doe  602/ 

V.  Fleming  554 

V.  Graham  384,  700,  724,  731,  748 

V.  Griffin  196,  511  a,  538 

r.  Macaulev  416,  420,  526 

V.  Marine  Co.  602^?,  602  v,  782 

V.  Nanson  181 

Griffith  V.  Buckle  361 

V.  Chew  244 

V.  Evans  112,  251 

V.  Griffith    51,  218,  222,  223,  240,  277, 

648 

V.  Hughes  849 

V.  Morrison  550 

V.  Found  875 

V.  Pownall  385 

V.  Robins  189,  190,  210 

V.  Spratlev  183,  187,  188,  192 

Griffith's  Estate  910 

Griffith  Flood's  Case  739 

Griffiths  V.  Cape  748 

V.  Porter  402,  418,  849,  931 


INDEX   TO   CASES   CITED. 


Ixxv 


Griffiths  V.  Praen 

V.  Kicketts 

r.  Vanlicythuysen 

V.  Vere 
Grigby  V.  Cox 

V.  Hair 
Griggs  V.  Staples 

V.  V'eglite 
Griinball  v.  Cruse 
Grimes  v.  Harmon    694,  713, 
Grimke  v.  Grimke 
Grimshaw  v.  Walker 
Grimsby  v.  Iludtiell 
Grimstone,  Ex  parte 
Grindey,  In  re 
Grinell  r.  Adams 
Grinuell  v.  Baker 
Grisby  v.  Mousley 
Grissom  r.  Hill 
Griswold  v.  liigelow 

r.  Chandler 

r.  Griswold 

V.  Pennimaa 

».  Perry 

V.  Sackett 
Groesbeck  v.  Seeley 
Grolick  v.  Ward 
Groom  v.  Booth 
Grooves  v.  Rush 
Groschen  v.  Page 
Gross  V.  Reddig 
Grosvenor  v.  Day 

V.  Sherratt 
Groton  v.  Ruggles 
Grouch  t'.  Hazlehurt  L.  Co. 
Grout  V.  Van  Schoonhover 
Grover  v.  Wakeman 
Groverman  v.  Diffenderffer 
Groves  v.  Clark 

V.  Groves  126, 131, 

V.  Perkins 

V.  Price 

V.  Wright 
Grosvenor  i".  Cartright 
Growing  t'.  Behn 
Gruhn  r.  Richardson 
Grumbles  v.  Grumbles 
Grundy  v.  Drye 
Grute  I".  Locrofl 
Gubbins  v.  Creed 
Gude  V.  Worthington 
Guerrant  r.  Fowler 
Guerreiro  v.  Peile 
Guest  I'.  P'arley 
Guibert's  Trust 
Guiddy's  Case 
Guild  t'.  Guild 
Guiltbil  V.  Arthur 
Guill  r.  Northern 
Guilford  v.  Minneapolis,  &c., 

Guillam  r.  Holland 
Guion  r.  Doherty 

t7.  Melvin 

r.  Pickett 
Gulick  V.  Griswold 

V.  Gulick 
Gullia  V.  Gollin 


[Beferences  are  to  sectioos.] 

272 

5'J3 

884 

3'J5 
654,  067 

238 

213 

4G5 

476  a,  918 

728,  729,  7.10 

248 

592 

869 
605,  Cll 

848 

590 

405 

229 

737,  748 

511c 

463,  4G8 

8-28 

639 
784,  785 

277 
126, 136,  142 

214 
793,  884 


592 
678 
602  66 
194 
2G2 

181,  206 
305 
590 

627,  G45 

145 

137,  140,  141 

185,  645 
438 
547 
404 
239 

147,  238,  245 

864 

277 

637 

427 

249 

71 

243 

299 

207 

694 

71,  627,  631 

260,  730 

794 

Ry.  Co. 

225 
584 
680 
282 

248,  290,  473 
2.V2 
104 
630 


Gullwer  r.  liay 

324 

V.  Wicket 

379 

Gullv  f.  Cregoe 

112,  117 

V.  Hall 

646 

Gumbert's  App. 

159 

Gunn  r.  Barrow 

330 

r.  Brown 

920 

Gunnell  r.  Cockerill 

828 

V.  Whitear 

433 

Gunnison  r.  Erie  Dime  S.  Co. 

127 

Gunter  V.  Gunter 

348 

V.  Jones 

602i>,  602  V 

V.  Thomas 

184 

Guntert  r.  Guntert 

79 

Guphiil  V.  Isbell 

330 

Gurney,  In  re 

861 

Gutch  V.  Fosdick 

860 

Guth  V.  Guth 

672,  073 

Guthrie  v.  Gardner            126, 

143, 144,  149 

Gutwillig,  In  re 

593 

Gutzwillcr  V.  Lackman 

596 

Guy  V.  Dormer 

511c 

V.  Hancock 

602  ee 

V.  Mcllree 

589 

Guj'er  V.  Maynard 

308.  705 

Guyton  v.  Shane 

411,  900 

Gwillianis  r.  Kowell 

121,  414 

Gwinii  V.  Williams 

2<J0 

Gwynn  v.  Gwynu 

100 

f.  Heaton 

187,  188 

Gvett  V.  Williams 

570 

H. 

Haaven  ».  Hoass  142 

Haberdashers'  Co.  v.  Att.-Gen.  900 

Habergham  v.  Vincent  13,  93, 151,  347, 

5116 

Plabershon  v.  Vardon  701,  710 

Hackett  V.  Hackc'tt  511  6 

Hacknian  v.  MaGuire  437  a 

Hacknev  v.  Brooman  86,  99 

I'.  Butts  206 

Haddelsey  r.  Adams  371 

Hadden  v.  (.'horn  748 

Haddock  r.  I'erham  5.'?9 

Hadlev,  In  re  272,  291 

r.'Hadiey  411,499,920 

V.  Hopkins  Academy  700,  743,  744, 74S 

r.  Latimer                "  189 

I'.  Pickett  237 

t'.  Stuart  1-23 

Hadow  r.  Hadow      112,  117,  118,  612.  620 

Hafley  v.  Birchetts  238 

Hafner  v.  Irwin  590,  592 

Hagan  v.  Piatt  545 

I'.  Powers  124 

Hagell  V.  Currie  827 

Hatrler  r.  McCombs  918 

Hahn  r.  Hutchinson  225 

r.  Pindell  782 

Haigh  r.  Kay  85,  162,  165,  226 

V.  Pearson  Uto 

Haigood  r.  Wells  618 

Hain  v.  Robinson  75 

Hain's  Estate  200 

Haines  r.  Ellis  645 

V.  Hay  910 


Ixxvi 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Haines  v.  O'Connor 

141 

Hake  V.  Fink 

639 

Halcott  V.  Morkaiit 

137 

Haldenby  »•  Spofford 

768,  877 

Hale  V.  Burrowdale 

A'A 

V.  Ilollon 

188 

r.  Home 

152 

V.  Lamb 

107,  110,  111 

V.  Layton 

75 

V.  Penn 

390 

V.  Sheldrake 

457 

V.  Stone 

647 

Haley  v.  Bannister 

613,  619 

V.  Bennett 

232 

Haleyburton  r.  Kershaw 

562 

Halford  v.  Stains 

150,  397,  584 

Hall,  In  re 

840 

V.  Bliss 

199 

V.  Bumstead 

559 

V.  Carter      416,  421, 

578 

580,  581,  584 

V.  Congdon 

126 

V.  Coventry 

872 

V.  Culver 

490 

V.  Gushing 

262, 

263,  272,  574 

V.  Denisou 

591,  602 

V.  Dewes 

344,  414.  492 

V.  Doran 

141,  148 

i;.  Franck 

412 

V.  Gambrill 

248 

V.  Hall                   84, 

104 

147,  371,  636 

V.  Hallett 

202,  894 

V.  Harris 

602  (/t/,  8i3,  877 

V.  Hill 

632 

V.  Hugonin 

633 

V.  Irwin 

500 

V.  Jones 

232,  414 

V.  Kappenberger 

145 

V.  Laver 

894,  907 

V.  Livingston 

226 

V.  Lock 

884 

V.  Maccubbin 

238 

V.  May 

294, 

340,  495,  505 

V.  McLain 

639 

V.  Otis 

828 

V.  Palmer 

103 

V.  Read 

184 

V.  Sayre 

649 

V.  Sprigg 

126 

V.  Sullivan  R.  R.  Co.  756 

757,  758,  761 

V.  Timmons 

170,  849 

V.  Towne 

602^3,  602  I' 

V.  Vanness 

129 

V.  Waterhouse 

650 

V.  Williams,  et  al. 

380  i 

V.  Wilson 

918 

V.  Young 

126,  132.  039 

Hallack  v.  Smith 

236,  238,  239 

Hallam  r.  Tillinghast 

122 

FTallenback  v.  Rogers 

145 

Hallett  V.  Collins 

228,  230 

V.  Hallett 

.570 

V.  Parker 

127 

I".  Thompson 

386  a,  555,  682 

Hallett  &  Co.,  In  re 

828 

Halliburton  v.  Leslie 

■"2 

Halliday  t\  Hudson 

151,  152 

V.  Overton 

357 

V.  Summerville 

.^71 

Hallows  V.  Lloyd 

284 

Halmon's  Appeal 

Halsell  V.  Wise  County  Coal  Co. 

Halsey  v.  Cheney 

V.  Halsey 

V.  Tate 

V.  Whitney 
Halstead  v.  Bank  of  Kentucky 
Haly  I!.  Bannister 
Ham  V.  Ham 
Hambel  v.  Hanibel 
Hamberlin  j;.  Terry 
Hambrooke  v.  Simmons 
Hamer  v.  Sidway 

V.  Tilsley 
Hamersley  v.  De  Biel 

V.  Lambert 

V.  Smith 
Hamerton  v.  Whittou 
Hamet  i'.  Dundass 
Hamilton,  In  re. 

V.  Bishop 

r.  Buchanan 

V.  Buckminster 

V.  Crosby 

V.  Dooly 

V.  Downer 

V.  Fowlkes 

V.  F'rye 

17.  Grant 

V.  Hall 

V.  Hamilton 

V.  Hector 

V.  Houghton 

V.  Lubukee 

V.  Mills 

V.  Mound  City  M.  L.  L.  Co. 

i".  Royce 

I'.  Tighe 

V.  Watson 

V.  Wright 
Hamlen  v.  Bennett 
Hamley  v.  Gilbert 
Hamlin  r.  Hamlin 
Hammatt  v.  Emerson 
Hammerston's  Case 
Hammett  v.  Stricklin 
Hammond  v.  Granger 

V.  Hammond 

V.  Hicks 

17.  Hopkins 

V.  Messenger 

V.  Neame 

V.  Walker 
Hamnett's  Appeal 
Hampden  v.  Hampden 

r.  Miller 

V.  Rice 
Hampshire  v.  Bradley 
Hampson  v.  Bramwood 

17.  Fall 
Hampstead  i7.  Johnson 
Hampton  v.  Moorhead 

V.  Spencer 
Hanbury  r.  Kirkland 


t7.  Spooner 
Hanby  r.  Roberts 
Hanclutt  r.  Briscoe 
Hancock  v.  ISIinott 


900 

206,  207 

206 

636 

864 

592,  593 

218,  219 

395 

412 

358 

160,  182 

87 

83 

477,  552 

208,  368 

64 

310  a,  646,  652,  653 

367 

187 

114 

647,  651 

147 

766 

511  c,  785 

195 

83,  863 

239 

276,  280 

855 

171 

627,  671 

672 

585,  594  595,  597,  600 

602  jB 

626 

217 

222 

903  a 

179 

427,  904 

656 

612,  620 

324 

171 

298 

237 

287 

459 

863 

195,  861 

859 

117,  118,  612,  620 

826 

127 

183 

232 

704,  748 

900 

901,  903  a 

126 

592 

5116 

82,  84,  85 

261,  417,  418,  419, 

466,  509 

272 

573 

669,  8-50 

562,  571 


197 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


IXXVll 


Hancock  v.  Smith 

r.  Titus 
Ilancom  v.  Allen 
Haiidick  r.  Wilkes 
Ilaixlhiii  ('.  Iluiidlaa 
Ilaudlt'v  r.  Daviua 

V.  Lyons 

V.  rainier 

V.  Siiodf^rass 

V.  Stutz 
Handlin  v.  Davis 
Hands  I'.  Hands 
Ilane  v.  Vandeusen 
Hanli-y  v.  Downing 
Ilannuli  r.  Carnalian 


345 
1-27 

444,  455 

■Ml 

145 

903  a 

232 

43,  448,  700 

4U2,  408 

242 

1U7 

250,  258 

237 

600,  C(;2 
4(it; 


i;.  Carrington  602  A,  602  J,  602  m,  602  (A/ 

V.  Hod^'son  201 

Ilannan's  Co.,  In  re  24S 

Hun  no  r.  Stevens  881 

Hannij;  v.  Mueller  83,  520 

Hanntnn  v.  Spear  598,  795 

Hansconi  r.  Marston  457 

Haii>L'n  V.  liethclsen  7G 

Hanson  v.  l'..'Verly  799,  808 

V.  Clia|)niau  018 

V.  Edgerly  179 

V.  First  Fres.  Church  137 

V.  Jacks  891 

V.  Keating  633 

V.  Little  Sisters  of  the  Poor  720 

V.  Miller  630,  G43 

V.  Worthington  261,  2G2,  809,  877 

Hapgood  r.  Perkins  441,  444 

V.  Rout  499 

Happv  V.  Morton  733 

Harbi'n  v.  Ijell  433 

V.  Darby  904 

Harbison  i'.  Lemon  191 

Harbster's  Estate  520 

Harcourt  v.  Harcourt  601 

V.  Knowle  218 

I'.  White  809 

Hardage  v.  Stroope  358 

Hardcastle  v.  Fisher  590,  000 

Harden  r.  Darwin  &  Pulley  48,  120 

Harden  v.  Parsons     416,  421,  441,  453,  850 

HardenburLTh  r.  Blair  380 

Harder  v.  Harder  126,  137,  138 

Hardin  v.  Baird  82.  98 

Harding  v.  Glyn      112,  248,  249,  250,  251, 

256,  258,  699,  714 


r.  Handy 

181), 

190 

V.  Hardrett 

220 

828 

V.  Larntd 

453, 

010 

V.  Kaiidall 

171 

Hardinghani  v.  Nichols 

219 

Hardinan  r.  Ellanier 

219 

Hard  wick  v.  Mynd  402, 

495, 

503, 

779, 

795, 

804 

800 

807 

I'.  Vernon 

821, 

803 

Hardy  v.  Boaz 

677 

V.  Caley 

246, 

907 

V.  Call 

891 

V.  Metropolitan  Land  Co 

444 

V.  Reeves 

637 

802 

V.  Sanborn 

540 

V.  Simpson 

590 

V.  Skinner 

590, 

.591 

Hare  v.  Sherewood 

226 

Harford  r.  Baker  680 

V.  Lloyd  835 

V.  Purrier  122 

Hargreaves  v.  MitrhcU  601,  863 

Ilargthoriie  r.  Milforth  421 

Ilarincktll  r.  Orndorll  602  n 

Marker  v.  Reilly  160 

Harkin  v.  Darb'y  432 

Harkkader  I'.  Leily  589 

Darkness  and  Allsopp's  Contract,  In  re  277 

Harlan  r.  Brown  788 

Uarland  v.  Binks  593 

V.  Trigg  112,  113,  116 

Harland's  Appeal  918 

Ilarley  v.  llarley  626 

v'.  Platts  311 

Harlow  V.  ftHster  873 

Ilannon  v.  Carver  602  r 

V.  Siler  658 

I'.  Smith  223 

Harmood  v.  Oglander  13,  347,  5C3,  800,  872 


Harnard  v.  Webster 
Harnett  v.  Maitland 

r.  McDougall 
Harpending  v.  Dutch  Church 
Harpar  v.  Archer 

V.  Harper 

I'.  Hayes 

V.  Munday 

V.  Phelps 

r.  Straws 

V.  Williams 
Harrald,  In  re 
Harrigan  i'.  Smith 
Harrington  v.  Brown 

V.  Duchattel 


847 

477,  552 

070 

45 

127 

75 

770,  780 

901 

113,  116,  251,  2.53 

275 

239 

903  a 

803 

195,  205,  428 

214 


V.  Erie  County  Savings  Bank  195 

Harris  v.  American  Bible  Society  715,  748 


Barnett 

t'.  Carter 
V.  Collins 
f.  Daugherty 
V.  Dole 

V.  Du  Pasquier 
V.  F^iliott 
V.  Fly 
V.  Haines 
V.  Harlan 


76,  77,  83 

171 

228 

142,  169 

680 

711 

133,  330 

569,  570,  576 

109 

237 


V.  Harris  58,  275,  279,  451,  460,  002  na, 
060,  931 


V.  Ingledew 
V.  Martin 
I".  Ml' Bane 
r.  Molntvre 
V.  M..tt  " 
I".  Newton 
f.  Norton 
V.  Pepperell 
V.  Pounds 
V.  Poyner 
I'.  Pugli 
r.  Po(ip 
r.  S.nvell 
V.  Slaght 
V.  Sunmer 
V.  Taylor 
r.  Tremenheere 
r.  Tvson 
V.  Ifnion  Bank 


539,  595 
918 
£73 

126.  141 

654,  e.-iS 

257 

221 

186 

890  a 

451,  552 
304 
214 
865 

715,  716 
591 
642 

202,  206 
180 
126 


Ixxviii 


INDEX    TO   CASES   CITED. 
[References  are  to  sections.] 


Harris  v.  Williamson  171 
Harrisburgh  Bank  v.  Tyler    127,  133,  137, 

138 
Harrison,  Jn  re,  549,  551 
V.  Andrews  640 
v.  Asher  929 
V.  Battle  602y,  602?,  602/ 
V.  Boswell  8(;2 
V.  Brolaskej-  G52,  653,  804 
V.  Brophy  715 
V.  Forth  222 
V.  Foster  451 
V.  Graham          261,  402,  41G,  419,  421 
V.  Guest  187,  195 
V.  Gurney  72 
V.  Harrison          94, 114,  248,  251,  255, 
379,  380 
V.  Hill  658 
V.  Hollins  855 
V.  Howard  226 
V.  McMennomy  77 
V.  Manson  195 
v.  Mock  209,  596,  890 
V.  Naylor  306,  372 
V.  Prise  877,  929 
V.  Randall  476 
V.  Rowan  475 
r.  Rowley  272 
V.  Smith  828 
V.  Stewardson  873,  885 
V,  Thexton  440 
V.  Union  Trust  Co.  275 
V.  Warner  891 
Harrison's  Trusts,  Re,  275 
Harrod  v.  Fountleroy  229 
Harrold  v.  Lade  126,  129,  206 
Harrop  v.  Howard  670 
Harshman  v.  Lowe  580 
Harston  v.  Tenison  803 
Hart  V.  Bayliss  305 
V.  East  Union  Railway  752 
V.  McFarland  590 
V.  Middlehurst  301 
V.  Sevmour  83,  225,  382,  520 
V.  Stephens  640 
V.  Ten  Eyek  847 
V.  Tribe  112, 117,  620,  623 
Hart's  Appeal  863 
Hartga  v.  Bank  of  England  242 
Hartley  v.  Hurle  310,  649 
Hartman  v.  Dowdell  640,  641 
Hartnian's  Appeal  282 
Hartopp  V.  Hartopp  201 
Hartshorne  v.  Nichols  714 
V.  Nicholson  700,  729 
Hartson  v.  Elden  382 
Hartwell  v.  Hartwell  214 
Hartzell  v.  Brown  900 
Harvard  College  r.  Amory  450 
V.  Balch  253 
V.  Soc.  for  Promoting  Theol.  Ed- 
ucation 724,  735,  739 
Harvey,  In  re  348,  555 
V,  Alexander  109 
V.  Ashley  34 
V.  Aston              512,  514,  515,  517,  518 
V.  Cook  185 
V.  Cubbedge  815  h.  820  n 
v.  Gardner  75,  200 


Harvey  v.  Harvev  451,  532,  614,  616,  647, 

885 

V.  Lcdbetter  120 

r.  Mix  589 

V.  Mount  187,  189,  192 

V.  Penny  backer  133,  137 

Harwodd  v.  Fisher  640 

V.  West  112 

Hascall  v.  King  472 

Hasell,  Kx  parte  805 

V.  House  765 

Hasher  v.  Hasher  863 

Haskc-ll  V.  Hervey  763 

Ilaskill  V.  Freeman  95 

Haslen  v.  Kean  254 

Hassam  v.  Hazen  511  r 

Hassanclever  v.  Tucker  570,  571 

Hassard  v.  Rowe  600 

Hassel  v.  Hassel  570 

Hastie  &  Silver  v.  Aiken  803 

Hastings  v.  Baldwin  602 

V.  Belknap  592 

V.  Drew  242 

V.  Ord  104 

Hatch  V.  Hatch  195,  200 

V.  St.  Joseph  104 

V.  Smith  585 

Hatchell  v.  Eggleso  633 

Hatcher  v.  Hatcher  232 

V.  Massey  815  a 

V.  McNaniara  769 

Hatfield  v.  Montgomery  228 

Hathaway  v.  Hathaway  121 

Hathorn  v.  Mavnard  815  c 

Hathorne  v.  Root  920 

Hathornthwaite  v.  Russell  816,  819 

Hattersley  v.  Bissett  500 

Hatton  v'.  Weems  910 

Haup;hton  v.  Haughton  515 

Ilault  V.  Townshend  708 

Hauser  v.  Lehman  420,  421 

V.  Shore                    597,  794,  795,  797, 

798 

Havelock  v.  Havelock  615 

Havers  v.  Havers  818,  819 

Haviland  v.  Bloom  027 

V.  Mvers  631,  632 

Hawes  v' Chaille  239 

V.  Oakland  242 

V.  Wyatt  192 

Hawken  v.  Bourne  486 

Hawker  v.  Hawker  308,  315 

Hawkesworth  ».  Hawkesworth  603 

Hawkin's  Appeal  200 

Trust,  In  re  272 

Hawkins  i;.  Barney  855 

V.  Chapman  314,  806,  809 

V.  Chappell  427,  771 

».  Gordon  86 

V.  Hawkins  843 

V.  Kemp       273,  290,  502,  511  b,  602  p, 

800 

V.  Luscombe  309,  310 

V.  May  602/,  602  m,  602  p 

V.  Oheen  336 

V.  Obin  641 

Hawks  V  Sailors  124 

Hawkslev  v.  Barrow  008 

Hawley  v.  Cramer  195, 197, 202, 205, 228,480 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Ixxix 


Hawley  v.  James       72,  117,  ICO,  240,  312, 
324,  380,  890,  3'.t7,  398,  404,  40!i, 
511,  502,  583,  779,  900 


V.  Ross 

282,  341 

Hawtayiie  v.  Bourne 

480 

Hawtliorne  v.  Browne 

128 

Haxall  V.  Sliippen 

553 

Ha.\ton  V.  Corse 

396,  398 

V.  McClaren 

104 

Hay  V.  Master 

112 

V.  rainier 

550 

Ilaydel  v.  Hurck 

5U  a,  910 

Hayden  v.  Bucklin 

855 

V.  Conn.  Hospital 

727 

V.  Stone 

658 

V.  Stuart 

238 

Haydon  v.  Stone 

863,  805 

Haye  v.  Brewer 

502 

Hayes,  Ex  parte 

617,  618,  623 

'  V.  Applegate 

400 

V.  Baylev 

584 

V.  Carroll 

127 

V.  Doane 

590 

V.  Goode 

229,  803 

V.  Hayes 

380 

V.  Heidelberg 

596 

V.  HoUis 

1.39 

V.  Horine 

232 

V.  Jackson 

94,  562 

V.  Kershaw 

97,  98,  109 

V.  Kindersley 

140,  147 

V.  Kingdome               136 

,  146,  151,  101 

V.  Otelly 

921 

V.  Pratt 

248,  720,  729 

V.  Tabor 

299 

V.  Ward 

72,  210 

Hayne  v.  Hayne 

183 

V.  Mclntlre 

865 

Haynes  v.  Forshaw 

809,  811 

V.  Redington 

455 

Haynesworth  v.  Cox 

511a 

Hays  I'.  Jackson 

94,  562 

'  V.  Quay 

82,  139 

V.  Reger 

79 

Hayter  v.  Trego 

722,  729,  731 

Hayton  v.  Wolfe 

264 

Hayward  r.  Cope 

179 

'v.  Hayward 

637,  642,  644 

V.  Ovey 

878 

Haywood  i*.  Craven 

748 

V.  Ensley 

75 

Hazard  v.  Irwin 

171 

Hazel  V.  Hogan 

bor, 

V.  Woods 

5(15 

Hazeltine  v.  Foumey 

82S 

Hazclton  v.  Valentine 

440 

Heacock  v.  Coateswortb 

135 

V.  Fly 

184 

Head  v.  Egerlon 

219 

I'.  Gould 

343,  454,  407 

V.  Head 

672,  673 

V.  I'rnvidence  Ins.  Co. 

44 

V.  Tcyiiham 

878 

Head's  Trustees,  In  re 

308,  507 

Headen  r.  Quillian 

705 

Header's  Ex'rs 

538 

Heaiey,  In  re 

630 

Healy  r.  Alston 

347 

V.  Rowan 

34 

Heap  V.  Tongue  185 

Heard  r.  Eldredge  545,  918 

i\  I'illev  206 

V.  Read  490,  498.  5116 

Heardson  v.  Williamson  312,  317 

Hearie  v.  Botelers  239 

V.  Greenback  33,  48,  52,  324,  489, 

615 

Hearn  v.  Crutcher  602 

V.  Hearn  843 

Hearns  r.  Savage  918 

V.  Waterbury  Hospital  699 

Heartley  v.  Nicholson  96 

Heath  v.  Bishop  386  a,  555 

V.  Carter  145 

V.  Erie  R.  R.  Co.  875,  876,  877 

V.  Heath  628,  632 

V.  Henly  863 

V.  Knapp  336,  337 

V.  Lears  555 

V.  Lewis  616 

V.  Page  129 

V.  Percival  878 

V.  Slocum  127 

I'.  Withington  288 

Heathcote  v.  Hulme  468,  470 

V.  Paignon  187 

Heathnian  ».  Hall  647,  648 

Heath's  Appeal  181 

Heatlev  v.  Finster  221 

V.  'Thomas  511  b,  657,  602 

Heaton,  Ex  parte  454 

Matter  of  610 

V.  Hassell  635 

V.  Marriott  416 

Ilebblethwait  v.  Cartwright  578 

Hebron  v.  Kellv  76 

Hecht  V.  Slanev  865 

Heck  V.  Clippenger  647,  648,  651 

Heckert's  Appeal  918 

Hedges  v.  Ricker  528,  709 

Hefferman  v.  Addams  511  c 

Heiglie  v.  Littig  546 

Heidenheimer  v.  Bauman  83,  729 

Heighington  v.  Grant  471,  902 

Heighten  v.  Grant  903  a 

Heilner  v.  Imbrie  218 

Heinz  v.  White  212 

Heiskell  v.  Powell  126 

V.  Trout  127 

Heist  V.  Baker  232 

Helan  v.  Russell  701 

Ilclfensteiiio  v.  Garrard  299 

Ilfllugas  r.  H.-Ilcgas  602« 

H.llman  v.  McWilliams  86,  104 

Hellman's  Will  927 

Helm's  Ex'r.  v.  Rogers  803 

Helmev  r.  Heitcamp  602 jf 

Heiins'r.  Franciscus  627,  631,  636,  645 

Ilim  V.  Rushowski  602  66 

Henienway  r.  Hemenway  547 

Hemnier  i'.  Cooper  173 

Ilemmings  v.  Munckly  514,  515,  517 

Hemmingway  t'.  Mathews  640 

Hempfield  R.  R.  Co.  v.  Thomburv         2'^2 

Hemi)hill's  Appeal  440,  456,  459,"  400,  4nr,, 

G18 

Estate  018 

Hempstead  v.  Hempstead  126 


Ixxx 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Ilemstreet  v.  Wheeler 

76 

Henchey  v.  Henchey 

82 

843 

Heiicluiianv.  Att.-Gen. 

329 

Iluiulerson  v.  Adams 

299 

V.  Atkius 

576 

V.  Burton 

232 

V.  Cross 

152 

V.  Downing 

590 

5:)1 

V.  Henderson 

100 

V.Hill                               300,312,815  a 

V.  Hoke 

12G 

133 

V.  Hunter 

312,  744 

748 

V.  Kennicott 

580 

V.  Mclver 

912 

V.  Vaulx 

541 

V.  Virden  Coal  Co. 

386 

V.  Warmack 

127 

V.  Williams 

765 

Henderson's  Appeal 

589 

Handle}'  v.  Westmeath 

672 

Hendrick  v.  Hopkins 

191 

Hendricks  v.  Nunn 

166 

V.  liobinson 

428 

Hendrickson  v.  Decow 

730 

733 

V.  Hendrickson 

863 

865 

Heneke  v.  Florin 

137 

Heiigst's  Appeal 

416, 

417 

Henkle  v.  Koyal  Ins.  Co. 

226 

Henley  v.  Axe 

188 

V.  Cook 

185 

V.  Phillips 

900 

V.  Stone 

873 

Hennershotz's  Estate 

154 

Hennessey  v.  Bray 

265 

846 

V.  Western 

591,  592, 

599 

Henrj'  v.  Dilley 

676 

V.  Doctor 

282 

V.  Morgan 

222 

330 

■c.  Raiman 

202 

V.  Smith 

660 

Henry  County  v.  Winnebago 

230 

728 

Henschel  v.  Mamero 

171 

V.  Maurer 

163 

Henshaw  v.  Morpeth 

694 

V.  Sumner 

586 

Hensman  v.  Hackney 

724 

Henson  v.  Kinard 

98 

V.  Wright 

520 

Henvell  v.  Whittaker 

570 

Hepburn  v.  Dunlop 

173 

V.  Snyder 

232 

Hepburn's  Appeal 

652 

899 

Herbergham  v.  Vincent 

92 

Herbert  v.  Blunden 

359 

V.  Hanrick 

782 

V.  Herbert 

477 

V.  Lownes 

182 

V.  Scoffield 

232 

V.  Smith 

195 

V.  Webster 

671 

Hercy  v.  Dinwoody 

867 

809 

Hereford  v.  Adams 

698,  699 

725 

V.  Ravenhill 

461 

Heriots's  Hospital  v.  Ross  744, 907,  910,  914 
Hermstead's  Appeal  918 

Herndon  v.  Pratt  858 

Heme  v.  Meeres  187,  195,  428 

Heron  v.  Heron  137,  210 

Herr  v.  Payson  202 


Herr's  Appeal 
Herr's  Estate 
Ilerrick's  Estate 
Herriott  v.  Prime 
Hertell  v.  Bogert 
Hertzfeld  v.  Bailej* 
Hervey  v.  Audland 
Hesing  v.  Att.-Gen. 
llesketh  v.  Murphy 
Hess  V.  Dean 
Hess's  Estate 
Hester  v.  Hester 

V.  Wilkinson 
Hetlield  v.  Debaud 
Heth  V.  Richmond 
lletzel  V.  Hetzel 
Heugh  V.  Jones 
Heuser  v.  Harris 
Hewes  v.  Dehon 
Hewett,  In  re 

V.  Foster 

V.  Hewett 

V.  Wotton 
Hewit  V.  Hewit 
Hewitt  V.  Crane 

V.  Loosemore 

V.  Morris 
Hews  V.  Kenney 
Heyer  v.  Burger 
Hej'sham  v.  Heysham 
Hevwood  V.  Buffalo 
Hibbard  D.  Lamb  19,275, 
Hibbert  v.  Cook 

V.  Hibbert 
Hichens  v.  Kelly 
Hickens  v.  Congreve 
Hickey  v.  Burt 

V.  Young 
HickJey  v.  Farmers 
Hicklius  V.  Boyer 
Hickman  v.  Stewart 

V.  Upsall 
Hickox  V.  Elliott 
Hicks  V.  Hicks 

V.  Sallitt 

V.  Wrench 
Hickson  v.  Fitzgerald 
Hidden  v.  Hidden 

V.  Jordon 
Hide  V.  Ha_vwood 
Hieronymous  v.  Mayhall 
Higbee  v.  Higbee 

V.  Rice 
Higginbottom  v.  Hulme 

V.  Peyton 
Higgins  V.  Joyce 
Higginson  v.  Barneby 

V.  Turner 
High  V.  Batte 
Highway  v.  Bauner 
Hildreth  v.  Eliot 
Hileman  v.  Bouslaugh 
Hill,  Ex  parte 

V.  Anderson 

V.  Atkinson 

V.  Bean 

V.  Brown 

V.  Buckley 

V.  Burns 


647 

195,  428 
453 
248 

225,  814 

239 

111 

732 

699 

779 

468 

500r,  602,  8;)4 

438,  439,  H18 

4(J2 

458,  836,  847 

254,498,  511a 

680 

699,  748 

562,  566 

658 

419,  424,  902 

249,  255,  492 

693 

508,  510 
201 
236 

550,  551 
145 
674 
614 
660 
497,  503,-504,  721 
477,  552,  913 

123,  907 
873 
885 
330 
137 
585 
552 
195 
929 
873 
851 
872 
899 

271,  898 

448 

75,  134 

909,  910 
861 

143,  145 

302 

555 

86 

178 

275 

43 

218,  221,  239 

362 

104 

358 

207,  555 
53 
480 
568 
431 
770 

705,  724 


&c.  Bank 


871. 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Ixxxi 


Hill  V.  Chapman  614 

V.  Conrad  253 

V.  Cook  152 

V.  Cornwall  104 

t;.  Davis  426 

V.  Diirand  873 

V.  Edmonds  633 

V.  Fo{,^g  242 

V.  Gouime  840 

V.  Gray  173 

V.  Hill     87,  94,  114,  375,  627,  645,  7C7 

V.  Jossclya  411 

V.  London  IIG,  151,  152,  158 

V.  Ma^an  891,  U07 

V.  i\Ianchester  W.  Works  752 

V.  Meinhard  145 

V.  Morgan  747,  891 

V.  I'age  114,  540 

V.  I'alil  G9 

V.  Pine  River  Bank  143 

V.  Reardon  70 

V.  Simpson  225,  810,  811,  814,  815 

V.  Tierney  845 

V.  Walker  481 

Hill,  Fontaine  &  Co.  v.  Coolidge  828 

Hillary  v.  Waller  349, 351,  352, 354,  8G6, 8G7 

Hilleglass  v.  Hilleglass  782 

Hillen  f.  Iselin  511  b 

Hilliard,  Kx  parte  463,  4G4 

V.  Beattie  248 

Hillier  v.  Jones  578 

Hillnian  i;.  Westwood  286 

Hillyard  v.  Miller     393,  399,  738,  748,  7G5 

Hillyer  v.  Bennett  53 

Hilton  V.  Girard  86 

V.  Ken  worthy  308 

Hinchel  v.  Daley  905 

Hinchenbroke  v.  Seymour  511  a 

Hinchmal  v.  Kmans  184 

Hinckley  v.  Hinckley  335 

V.  Maclaerns  257 

Hinckley's  Estate  737 

Hind  t\"Poole  414,  495 

V.  Sellv  451 

Plinde  V.  B'lakc  585,  593,  826.  827 

Ilindman  v.  Dill  590,  591 

Hindmarsh  v.  Southgate  53 

Hind's  Estate  639 

Hinds  V.  Hinds  261  a 

V.  Mooers  602  n 

Hindson  v.  Weatherill  199,  202 

Hincs  V.  SpruiJl  559 

Hinkle  v.  Landis  122 

V.  Wanzer  68 

ITinney  v.  Phillips  679 

Hinnings  v.  Hinning3  9.'!0 

Hinson  v.  Williamson  248,  415 

Plinton,  Ex  parte  388 

V.  Hinton  192,  322 

V.  Kennedy  456 

V.  Pritchard  169 

riintze  1'.  .Stingel  781 

Hinves  v.  Hinves  450,  451,  554 

Hinxman  v.  Poyndcr  112 

Hipkins  v.  Bernard  918 

Hipp  V.  Ilutchell  602  e 

Hir.'ih  V.  Aiier  79 

Hiserodt  v.  Hamlett  104 

Hitch  V.  Lewortiiy  408,  508 

VOL.    I.—/ 


Hitch  V.  Stonebraker  277 

Hitchcock  I'.  Bank  of  United  States       2G3 

llitchens  v.  Hilchens  317 

Hile  V.  Hite  229,  453,  545,  575,  918 

Hitner's  Appeal  672 

llitt  ».  Applewhite  60 

Hitz  V.  National  Met.  Bank  145 

Hoag  V.  Kfiiney  250 

Hoare  v.  Hoare'  672,  727 

V.  Osborne  706,  714 

V.  Parker  542 

V.  Peck  862 

Hoare's  Case  486 

liobart  i'.  Andrews  595 


152,  153 
672 
894 
175 

485 
203,  440,  845,  848,  849 
201 
602  0,  78U 
573 
873 
596 


V.  Suffolk 

Hobbs  V.  Hull 

V.  McLean 

V.  Parker 

V.  Wavet 

Hobday  v.  Peters 

Hoblyn  v.  lloblyn 

Hobson  V.  Bell 

V  Blackburn 

V.  Staneer 

V.  Thelluson 

V.  Trevor  68,  872 

V.  Wliitlow  828 

Hockenbury  i'.  Carlisle  202 

Hocking,  Jn  re  66 

Hocklev  V.  Bantock  469 

V.  Mawlcy  250,  251 

Hodgdon  v.  Sliannon  275 

Hodge  V.  At t. -Gen.  40 

V.  Hawkins  471,  472,  918 

V.  Wyatt  590 

Hodgens  v.  Hodgens  6.36 

Hodges,  In  re  511,  828 

V.  Blacrrave  78G 

V.  Bullock  828 

V.  Cobb  678 

V.  Hodges  671 

V.  New  England  Screw  Co.  207 

Hodges'  Estate  281,  4G6 

Ilodgkinson,  In  re  902 

Hodgson  V.  Bibby  850 

V,  Bussey  363 

V.  Hodgson  613 

Hodgson's  Settlement  297 

Hod'kinson  t-.  Quinn  802,  8'^3 

Hodle  V.  Healey  862 

Ilodnett's  Estate  171 

Hodson  V.  Ball  385 

Hodson's  Settlement,  In  re  658 

Hoeffer  v.  Clogan  715 

Hoes  V.  Van  Hoesen  569,  571 

Hoffen's  Estate  699 

Hoffman  v.  Anthony  602  q 

V.  Canow  128 

Hogan  V.  Jaques  162 

V.  Txpret  re  602  k 

V.  Staghorn  150 

V.  Wvman  58 

Hoge  1'.  Iloire  181,185,206 

Iloilhton  V.  Hoghton  185,  194,  201 

Hoile  r.  Bailev  843 

Holbrook  r.  Allen  585 

V.  Comstock  672 

I'.  Waters  629,  642 

Holcomb  V.  Coryell  275 


Ixxxii 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Holcomb  V.  Holcomb        411,  419,  510,  910 

Holden,  Jn  re  277 

V.  Crawford  187 

V.  New  York  &  Erie  Bank  242 

V.  Strickland  60 

Holder,  Jn  re  448 

V.  Durbin  277,  287 

V.  Nunnelley  137 

Holdom  V.  Ancient  Order  of  United 

Workmen  181 

Holdridge  v.  Gillespie  538 

Holdship  V.  Patterson  386  a 

Holdsworth  v.  Goose  784 

V.  Shannon  770 

Holford  V.  Phipps  901,  921 

V.  Wood  571 

Holgate  V.  Eaton  127 

Holgate  »'.  Hayworth  900 

V.  Jennings  451,  551 

HolIada}''s  Estate  4G2 

Holland  v.  Alcock     99,  260,  701,  710,  713, 

715,  723 

V.  Baker  873,  874,  885 

V.  Citizens'  Bank  223 

V.  Holland  200 

V.  Hughes  467 

V.  Peck  713,  724,  748 

Holland's  Case  17 

Hollenbeck  v.  Pixley  672 

Holliday  v.  Coleman  541 

Hollins  V.  Brierfield  Coal  Co,  242 

Hollinshead's  Appeal  76 

Hollinshed  v.  Allen  82 

I'.  Simms  16G 

Hollis  V.  Hollis  126 

Hollis's  Case  803 

Hollis-street  Meeting-house  v.  Pierpont  734 

Hollowav,  In  re  511  b 

V.  Headington  108,  170,  367 

Holraan,  Ex  parte  352 

V.  Loynes  202 

Holman's  Appeal  562 

Holme  V.  Williams  708 

Holmes,  Be  72,  671 

V.  Bell  883 

V.  Campbell  129 

V.  Coates  705 

V.  Coghill  108,  511  b 

V.  Dring  453,  621 

V.  Fresh  187 

V.  Oilman  828 

V.  Holmes  920 

V.  Joslin  618 

V.  Lysight  514 

V.  Mead  748 

V.  Mitchell  546 

V.  Penney  386  6 

V.  Pickett  299 

V.  Reynolds  658 

V.  Stone  218 

V.  Trustees  384 

V.  Turner's  Falls  Co.  199 

Holrovd  V.  Marshall  68 

Holt  V.  Agnew  204 

V.  Hogan  254 

V.  Holt  129, 196,  538 

Homan  n.  Hague  886 

Home  V.  Patrick  654 

Homer  v.  Homer  82, 127 


Homer  v.  Shelton 

64T 

Hon  V.  Hon 

86 

Hone  V.  Van  Schaick 

380 

Honner  v.  Morton 

626,  639 

Honor  v.  Honor 

361,  302 

Honore  v.  Bakewell 

237, 

238,  239 

V.  Bridport 

606 

V.  Hutchins 

1.33 

Hooberrj-  v.  Harding 

300 

Hood  V.  Bramlett 

511  « 

V.  Clapham 

451, 

467,  931 

V.  Fahnestock 

217,  222 

V.  Haden 

408 

V.  Oglander 

113, 

115,  386 

V.  Phillips 

348 

Hood-Barrs  v.  Heriot 

671 

Hook  V.  Dyer 

341,  464 

V.  Dundas 

512,  555 

V.  Kiiinear  ' 

874 

V.  Lowry 

471 

Hooper  v.  Eyles 

137 

V.  Feigner 

299 

V.  Holmes 

86 

V.  Hooper 

393,  737 

V.  Rossiter 

544,  545 

V.  Savage 

462 

V.  Scheimer 

328 

V.  Tuckerman 

590 

Hoot  V.  Sorrell 

664 

Hoover  v.  Hoover 

571,  796 

V.  Samaritan  Society 

667 

Hope  V.  Brewer 

72 

V.  Carnegie 

71 

V.  Clifden 

580 

V.  D'Hedouville 

450 

V.  Fox 

889 

V.  Gloucester 

869 

V.  Harman 

103 

V.  Hayley 

68 

V.  Hope 

603 

V.  Johnson 

308 

V.  Liddell                    245 

,337 

,  806,  846 

V.  Stone 

246  rt 

Hopkins  v.  Burr 

828 

V.  Glunt 

112 

V.  Grimshaw 

315 

,  384,  706 

V.  Hopkins  151,  299,  301,  304,  385,  863 

V.  Mvall  460,  467,  655 

r.  Ray  590 

V.  Turnpike  Co.  31 

V.  Upshur  748 

V.  Ward  17,  328 

Hopkinson  v.  Burghly  821 

V.  Dumas  126,  322,  347 

V.  Ellis  903  rt 

V.  Roe  912 

Hopper  V.  Adee  414 

V.  Conyers  837,  839,  842 

V.  Hopper  195 

Hoppes  V.  Check  770 

Hora  V   Hora  118 

Hord  V.  Hord  632 

Horde  v.  Suffolk  705,  712 

Hore  V.  Beecher  184,  633 

V.  Woufle  639 

Horn  V.  Barton  767 

V.  Horn  796 

V.  Lockhart  456 

Hornbeck  v.  Am.  Bible  Soc.  730 


INDEX   TO   CASES   CITED. 
[References  are  to  Bections.] 


Home  V.  Askham 

V.  Barton 

V.  Lyeth 
Horner  i'.  Swann 
Horns  Ijy  r.  Lee 
Horrey  v.  Glover 
Horrock  v.  Ledsam 
Horseley  v.  Chaloner 

V.  l'"awcett 
Horsey  r.  Hough 
Horsfall,  In  re 
Horton  v.  Urocklehurat 

V.  Horner 

V.  Horton 

r.  Kiley 

V.  Sledge 

V.  Smith 
Horto-pp  i'.  Hortopp 
Horwitz  c.  Norris 
Horwood  V.  West 


511a 

361,  371,  375 

350,  370 

7t)5 

g;j'j 

540,  546,  547 

878,  8'J2 

171,  443 

884 

187,  602  2 

337 

440,  821 

238 

309,  310 

212 

2'M 

347,  348 

172 

254 

112 


Hosack  V.  Rogers  593,  826,  894,  918 

Hosea  v.  Jacobs  381,  748 

Hosford,  In  re  448 

V.  Merwin  98 

Hoskins  v.  Nichols  468,  887 

Hospes  V.  Northwestern  Manuf.  Co.      242 

Hotchkins  v.  Gallatin  Turnpike  588 

Hotchkiss  V.  Fortson  191 

Hotchkj's,  In  re  477 

Hotel  Co.  I'.  Wade  206 

Hotz's  Estate  514 

Houck  V.  Houck  501 

Hough,  In  re  309 

V.  Blythe  685 

V.  Harvev  918  n 

V.  Kichar'dson     171,  173,  174,  175,  228 

Hougham  v.  Sandvs  511  c,  785 

Houghton,  Ex  parte  126,  130,  131 

V.  Davenport  815  b,  828 

V.  Davis  595 

V.  Hapgood  324 

House  I'.  Kountze  87 

V.  Way  449 

Household  S.  M.  Co.  v.  Vaughan  449 

Houston  V.  Embry  649,  651 

V.  Nowland  593 

V.  Thornton  177 

Hovenden  v.  Anneslev     40,  228,  229,  325, 

855,  857,  858,  8(Jl,  8(!2,  805 

Hovey  v.  Blakeman    417,  421, 422,  423,  G70 

V.  Blanchard  222 

V.  Bradbury  8G3 

r.  Dary  451 

How  V.  Bishop  142 

V.  Camp  216,  585 

r.  Godfrey  904,910 

V.  Hutch  299 

I'.  Sherewood  22'! 

V.  Weldon  171,  187,  188 

V.  Winterton  8()3 

Howard  v.  Aiken  803 

V.  American  Peace  Society      262.  699 

724,  748 

r.  Ames  002  o 

V.  Chaffers  576,  805 

V.  Digby  605 

V.  Duncora  787 

V.  Edgell  187 

V.  Fay  828,  838 


Howard  v.  Gilbert 
V.  Hatch 
V.  Henderson 
t".  Hooker 
V.  Howard 
V.  Jenimet 
r.  Manning 
r.  Moffatt 
V.  Morton 
V.  I'apera 
t'.  (iuattlebaum 


Ixxxiii 


282,  881 

602  r 

300 

213,  653 
147 
837 
468 
545 
627 
816,  818,  819 

453,  863 


V.  Rhodes           276,  280,  282,  283,  901 

V.  Savings  Bank  98 

V.  Thornton  402 

V.  Waters  275 

t'.  Whitfield  495 

Howard  Ins.  Co.  v.  Halsey  222 

Ilowarth  v.  Mills  66 

llowden  v.  Haight  212 

V.  Rogers  72 

Howe,  In  matter  of  43,  44 

V.  Dartmouth     440,  444,  450,  455,  467, 

541,  547,  548,  549,  848 

V.  Freeman  759 

V.  Howe  126,  450,  451,  547 

V.  Medcraft  572 

V.  North  658 

V.  School  District  734 

V.  Waldron  920 

Howell  r.  Ashmore  218 

V.  Baker  135 

V.  Barnes  493,  765 

V.  Edgar  592 

V.  Hanforth  556 

V.  Howell    126,  362,  541,  633,  865,  872 

V.  Price  564 

V.  Ransom  202 

V.  Tvler  511  c 

V.  Whitchurch  182 

Howell's  Estate  472 

Hower  V.  Geesaman  330 

Howgrave  v.  Cartier  580 

Howland  v.  Blake  137 

Howman  r.  Currie  640 

Howorth  I'.  Dewell  116 

Howse  V.  Chapman  704,  903  a 

Howth  V.  Owens  875 

Hoxie  r.  Carr  126,  137,  814 

V.  Finney  252 

I".  Hoxie  121 

Hoy  V.  Master  113,  115 

Hovle  V.  Jones  861 

■  V.  Stowe  530 

Hovsradt,  In  re  275 

Hoyt,  In  re  453,  541,  545 

V.  Hilton  624 

V.  Latham  195 

Hubbard  v.  Elmer  769 

V.  Fi<her  918 

V.  (ierman  Cath.  Cong.  730,  708 

V.  Goodwin  64,  131 

I'.  Llovd  263,  574 

V.  Manhattan  Trust  Co.                    855 

r.  U.  S.  Mortgage  Co.  863 

r.  Young  451 

Ilubbell  r.  Ilubbell  876 

t'.  Medbury  864 

Hubble  V.  Osborne  147 

Huckabee  v.  Billingsly  498,  602*,  921 


Ixxxiv 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Iluddleston,  In  re  253 

Hudson  V.  (Jarmichael  0tJ7 

Hudson  205,414,425,    8(13 


V.  Kinibrough 

V.  Maze 

V.  Morris 

V.  Wadsworth 

V.  White 
Hudson  B.  C.  Co.  r.  Glencoe  Co 
Huff,  Ex  parte 

V.  Earle 

r.  Wright 
Huger  V.  Huger 
Hugh  I'.  Smith 
Hughes,  L'x  parte 

V.  Caldwell 


S(il 
590,  GOO 
171 
541 
79,  124 
347 

4i;i 

602  « 

084 

610,  780 

471 

209,  285 

336 

55,  22G,  228 

439,  4G2 

150,  158,  159 

220 

219 

71 

612,  613 

232,  235,  236 

884,  888 

669 

358 

471 

081 

790,  794 

511c 

40,  240,  325,  6G7 

243 

206 

600,  601 

418,  426 


V.  FLdwards 

V.  Enipson 

V.  Evans 

V.  Garner 

V.  Garth 

V.  Hall 

V.  Hughes 

V.  Kearney 

t".  Key 

V.  Mills 

V.  Nicklas 

V.  J'eople 

V.  Peters 

V.  Tabb 

V.  Turner 

V.  Wells 

V.  Williams 

V.  Wilson 

17.  Wvnne 
Hughlett'z).  Hughlett 
Hughson  V.  Cookson  oaz 

V.  Mandeville  218 

Huguenin  v.  Baseley      104,  171,  181,  184, 

187,  189,  192,  204,  206,  210,  211,  511  a 
Hulkes  V.  Barrow  532,  533 

Hull  V.  Hull  397,  398 

V.  Pearson  712 

Hullman  v.  Honcomp  707,  748 

Hulls  V.  Jeffrey  586 

Hulme  V.  Hulfne  285,  286,  402 

V.  Tenant  654,  655,  657,  662,  670 

Hulse  V.  Wright  594 

Humberstone  v.  Chase  242,  875 

V.  Humberstone  376,  383,  390 

Humbert  v.  Trinity  Church  45,  855 

Humble  t'.  Bill  796,809,815 

Hume  V.  Lopes  453 

V.  Richardson  551 

Hummer  v.  Schott  232 

Humph  V.  Morse  &92 

Humjihrey  v.  Richards  664,  668 

Humphrey  v.  HoUis  874 

V.  Morse  269 

Humphreys,  In  re  622 

Hun  V.  Cary  401,  459 

Hungate  v.  Hungate  126 

Hunperford  v.  Earle  590 

Hunnewell  v.  Lane 
Hunt  V.  Ball 


Bass 
V.  Bateman 
V.  Booth 
V.  Bullock 


602  o 

205,  602  V,  602  ee,  771 

568 

647 

759 


Hunt  V.  Crawford 

328 

V.  Elliott 

86 

V.  Evans 

92 

V.  Fisher 

786  a 

V.  Friedman 

134 

V.  Hamilton 

182 

V.  Holden 

500 

V.  Hunt                       299, 

347, 

456,  672 

V.  Maldonado 

607 

V.  Mathews 

183, 

208,  213 

V.  Moore 

140, 

171,  189 

V.  Peacock 

882 

V.  Rousmaniere 

184, 

226,  499 

V.  Scott 

451 

V.  Smith 

828 

V.  Townshend 

783 

V.  Watkins 

546 

V.  Wheeler 

568 

Hunt,  Appellant 

453 

Hunter,  In  re 

701 

V.  Anderson 

324,411 

V.  Atkins                     190, 

195, 

202,  210 

V.  Baxter 

481 

V.  Gibson 

282 

V.  Hallett 

639 

V.  Hubbard 

864 

V.  Hunter 

98 

V.  Lawrence 

225 

V.  Marlboro' 

137 

V.  Smirall 

219,  221 

V.  Siembridge 

112,  117 

Hunter's  Will 

182 

Huntington  v.  Huntington 

621 

V.  Jones 

827  « 

Huntley  v.  Buckner 

602  aa 

V.  benny 

166 

Huntly  V.  Huntly          38,  95 

240, 

674,  863 

Ilunton  V.  Davies 

869 

Hurd  V.  Silsbee 

592 

Hurlburt  v.  Durant 

918 

Hurley,  Ex  parte 

780 

Hurst,  In  re 

440, 

465,  568 

V.  McNeil 

77 

299,  301 

V.  Wilson 

358 

Hurt  V.  Long 

52 

Husband  v.  Davis 

412 

Pollard 

111 

Huskisson  v.  Bridge 

112,  115 

Hussey,  Ex  parte 

282 

V.  Castle 

122 

V.  Markham 

271,  503 

Husted  V.  Thomson 

928 

Huston  V.  Cassidy 

205 

Hutcheson  v.  Hammond  160, 

476, 

480,  574, 
915 

Hutcbings  v.  Smith 

641 

Hutchinsv.  Baldwin 

499 

V.  Colby 

678 

V.  Heywood       142,  165, 

298, 

299,  301, 
305 

V.  Lee                      82,  86 

,  151 

162,  226 

V.  State  Bank 

814 

V.  Van  Vechten 

82 

Hutchinson  v.  Brown 

175, 191 

V.  Hutchinson            127 

162 

,  256,  258 

V.  Lord 

590 

V.  Morritt 

427 

V.  Patrick 

239 

V.  Reid 

877 

INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Hutchinson  r.  Tindall 

V.  Tottenham 

V.  Townsend 

Underwood 
Ilutt  V.  I'letcher 
Ilutton  V.  Anuan 

t<.  l)UL-y 

r.  Siiiipsoa 

r.  W'eeins 
Huxley  v.  Kice 
Huvler  i'.  Kingslaad 
Hyde  v.  Price 

V.  Warren 

r.  W'ason 

V.  Woods 
Hydeii  r.  Hyden 
Hyltou  V.  Hylton 
Hyman  v.  Devereux 
Hyndiiian  v.  Hyndman 
Hyiisliaw  c.  Morpeth 
Hyslop  V.  Clarke 


76,  79,  82,  85,  IG'2, 
18y,  I'Jl 

asu 

882 

C80 

80'J 

457 

672,  673 

871 

476,  915 

IG'J 

766 

672,  674 

602  c,  C02  (J,  60-2  /( 

'J  20 

386  a 

137,  4!)8 

195,  200,  851 

602  (/,  602  ee 

602  y 

700 

592 


lasigi  V.  Chicago,  &c.  R.  Co 
Iddings  V.  liruea 
Ide  V.  Pierce 
Idle  V.  Cook 
Igleliart  v.  Armiger 
Ihmsen's  Appeal 
lies  V.  Martin 
liniinster  School,  In  re 
Imboden  v.  Atkinson 
Imlav  V.  Huutinirtou 


900 

199,  428,  853 

82 

312 

234,  238 

459,  460,  469 

770 

733 

1!)!} 

359,  365,  655,  660 


Imperial  Mer.  Cred.  Ass'n  v.  Coleman  20 
Inches  v.  Hill  920 

Incliiquin  i'.  French  86,  93,  566 

Incledon  i'.  Northcote  616,  633 

Incorporated  Society  v.  Price  724,  729 

V.  Richards  694,  733,  745 

Independence  Church   v.  Reorganized 

Church  709 

Indiana,  &c.  K.  Co.  v.  Swannell     166,  790 

Indianapolis  v.  Grand  Master  705,  710,  748 

Ingalls  V.  Ferguson  656 

Inge,  Ex  parte  743 

V.  Forrester  651 

Ingersoll  v.  Cooper  330 

IngersoU's  Estate  448 

Ingham  v.  Burnell  75 

Ingle  f.  Partridge  402,  443,  445,  827 

Ingleby.  &c.  Ins.  Co.,  In  re  339 

Inglefield  v.  Coghlan  648 

Inglis  V.  Sailors'  Snug  Harbor   46,  47,  709, 

722,  730,  731,  736,  748 

Ingraham  r.  Baldwin  33 

Ingraham  472, 709 

I'.  Meade  251 

r.  Wheeler  592 

Ingham  v.  Kirkpatrick  900,  918 

Inioes  r.  American  Exchange  Bank       592 

yn  re  Allen  918 

"    "   Baker  918 

"    "    Brewer  476  n 

"   "  Cavin  v.  Gleason  828 

"    "   Gerrv  546 

"   "   Hawfev  121 

"   "   Holland  275 


In  re  Jackson 
"   "   Jones 
"   "   Martyn 
"   "   Mason 
"    "   Nash 
"  "   Watson 
Inlow  f.  Christy 
Insurance  Co.  r.  Smitlv 
Inwood  r.  'J'wyne 
lorr  f.  Hodges 
Ips.  Manuf.  Co.  v.  Story 
Irljy  r.  Irby 
Iredell  V.  Langston 
Ireland  v.  Geraghty 
Iritk  V.  Clement 
Irish  I'.  Antioch  College 
Irnliam  v.  Child 
Irvine  v.  Angus 

V.  Campbell 

V.  Dunham 

V.  Irvine 

V.  Kirkpatrick 

I'.  Robertson 

V.  Sullivan 
Irving  V.  De  Kay 

r.  Irving 
Irwin  V.  Keen 

V.  Patchen 

V.  Reeves  Pulley  Co. 

V.  Rogers 
Irwin's  Appeal 
Isaac  V.  Defriez 

r.  Gonipertz 

r.  Worstencroft 
Isaacs,  In  re 

r.  Weatherstone 
Isabella  Denby,  In  re 
Isbell's  Estate 
Isham  r.  Delaware,  &c.  R. 

V.  Post 
Isherwood  v.  Oldknow 
Ithell  t'.  Beane 
Iverson  v.  Saulsbury 
Ives  V.  AUyn 

V.  Davenport 
Ivory  r.  Bums 
Ivy  V.  Gilbert 
Izod  V.  Izod 


Ixxxv 


918 
552 
275 
918 
275 
275 
865 
330 
476,  605,  915 
311 
266,  440 
474 
915 
99,  732 
147 
861 

76,  226 
554 
232 
275 

33 

173,  180 

228 

112.  152 

894,  903  a 

476  a,  920 

590,  600 

451 

44 

900 

416 

256,  699 

718 

554 

448 

824 

272 

705 

R.  Co.    771 

225 

529 

367,  795,  796 

815  c,  820  a,  850 

93 

786  a 

77,  312 
581,  597 
249,  255 


J. 


Jackman  v.  Delafield 

V.  Hallock 

V.  Ringland 
Jacks  V.  The  State 
Jackson  r.  Bateraan 

V.  Billinger 

r.  Blount 

f.  Bowen 

r.  Brown 

V.  Burr 

I'.  Burtes 

V.  Cadwell 

V.  Calden 

V.  Cary 

V.  Cator 

V.  Clark 

V.  Cleveland 

I'.  Cornell 


500 

238 

126,  134,  135 

813  a 

132 

380 

602  d 

60266 

754 

765 

499 

162,  221,  299 

602  r 

299 

226 

602  t,  602  «,  602  an 

162 

509 


Ixxxvi 


Jackson  v.  Delancy 
V.  Dunsbagh 
V,  Duttoa 
V.  Feller 
V.  Ferris 
V.  Fish 
V.  Forrest 
V.  Garnsey 
V.  Given 
V.  Hampton 
V.  Hartwell 
V.  Haworth 
V.  Hobhouse 
V.  Hurlack 
V.  Hj'de 


INDEX   TO   GASES    CITED. 
[References  are  to  sections.] 


336 

2S)y 

105 

139,  144 

499 

298,  299,  312 

142 

162 

499 

602/ 

42,  43,  44 

654 

670 

152 

166 


V.  Jackson  136,  371,  606,  612,  861,  918 

V.  Jansen  783,  785 

V.  Leek  222 

V.  Lignon  783 

r.  Matsdorf  126,  143 

V.  Mills  126 

V.  Moore         82,  83,  130,  133,  349,  351 

V.  Morse  126 

V.  Myers  299 

V.  Parker  691 

V,  Phillips         690,  694,  697,  700.  701, 

705,  709,  710,  715,  719,  724,  728,  748 

V.  Pierce  349 

r.  Pool  815  b 

V.  Potters  500 

V.  Robins  315 

V.  Root  299 

V  Rowe  219 

V.  Sackett  866 

V.  Schauber  308,  765 

V.  Sharp  222 

V.  Sternberg  126 

V.  Sublett  633 

V.  Von  Zedlitz  827  a 

V.  Welch  196,  869 

V.  West  660 

V.  Williams  780 

V.  Winslow  222 

V.  Wood  139 

V.  Woods  126 

V.  Woolly  474 

Jackson's  Case  828 

Jacksonville  Nat.  Bank  v.  Beesley         137 

Jacob  V.  Lucas  414,  438,  505,  848,  884 

Jacobs  V.  Amyatt  634,  636,  649 

V.  Lake  231 

V.  Pou  863 

V.  Ryland  263 

Jacomb  v.  Harwood  225 

Jacot  I'.  Corbett  592 

V.  Emmett  463,  468 

Jacques  v.  Hall  81 

r.  Swasey  145 

Jagger  v.  Jagger  394 

Jago  V.  Jago  264 

Jail  V.  Mills  248 

James,  Ex  parte  197,  907 

James,  Jn  re  528 

V.  Allen  159,  711,  712 

V.  Bird  235 

V.  Cowing  215 

V.  Dean  195,  538 

V.  Everly  685 

V.  FrearsoQ  261,  262,  267,  419 


James  v.  Gibbs 

V.  Greaves 

V.  Holmes 

V.  James 

V.  Jolinson 

V.  Kerr 

V.  May  rant 

V.  Morey 

V.  Morgan 

V.  Smith 
James's  Appeal 
Jameson  v.  Shelly 

V.  Smith 
Jamison  v.  Brady 

V.  Lindsay 
Jane  v.  Kennedy 
Janes  v.  Falk 

V.  Throckmorton 
Janey  v.  Latane 
Jansen  v.  Ostrander 
January  v.  Poyntz 


602  ee,  627,  642 

171 

127,  210 

141,  195 

347 

188,  189,  203 

601 

347 

187 

206 

262 

463,  468 

308 

51,  277,  647,  648 

891 

768 

163 

863 

748 

43 

468 


Jaques  v.  Methodist  Church  667 

Jaquith  V.  Mass.  Bap.  Convention  145 

Jarmon  v.  Wilkinson  660 

Jarnagan  v.  Conway  254 

Jarvis  v.  Duke  171 

V.  Prentice  648 

Jasper  v.  Howard  651 

Jaudon  v.  National  City  Bank  814 

Jay  V.  Long  Island  R.  R.  684 

Jaycox  V.  Smith  223 

Jeaffreson's  Trusts,  In  re  256 

Jeans,  In  re  371 

V.  Cooke  147 

Jecko  V.  Lansing  251 

Jee  V.  Audley  385 

V.  Thurlow  372 

JefEeries  v.  Harrison  892 

Jefferson  v.  Tyrer  498 

Jeffersonville  Assoc  v.  Fisher  602  v 

Jeffervs  v.  Jefferys  97,107,108,111,162,367 

V.  Marshall  900 

Jeffreys  v.  Small  136 

Jeffries  v.  Lawson  426 

Jemmit  v.  Verrel  705,  712 

Jencks  v.  Alexander      142, 144, 149,  602 1, 

602  0,  602  2',  602  s,  602  x 

Jenckes  v.  Cook  215 

Jenison  v.  Groves  126,  137 

Jenkins,  Ex  parte  17 

Jenkins,  In  re  639,  642 

V.  Doolittle  468 

V.  Eldredge  81,  173,  181,  206,  226,  918 

V.  Fickling  432 

V.  Frink  126,  127,  129 

V.  Hammerschlag  274,  860 

V.  Hiles  597,  802 

V.  Jenkins  314 

V.  Jenkins  Uni.  159 

V.  Jones  782,  816 

V.  Lester  70 

V.  Milford  329 

V.  Pye  188,  201 

V.  Robertson  260,  847,  876 

V.  Row  761 

V.  Walter  463 

V.  Whyte  918 

Jenks  V.  Backhouse  343 

Jenner  v.  Hooper  739 


INDEX   TO   CASES    CITED. 
[Beferencea  are  to  sections.] 


Ixxxvii 


Jennesi  v.  Howard 
Jennev  v.  Mackintosh 
Jeiiuiiif's  V.  Broughton 

V.  Davis 

V.  Moore 

V.  Selleck 

V.  Sbacklett 

V.  Sturdevant 
Jennison  v.  llapgood 
Jenny  v.  Gray 
Jenour  v.  Junour 
Jernegan  v.  liaxter 
Jerome  v.  Holini 
Jerrard  t'.  Saunders 
Jurvis  V.  Woiferstau 
Jervoise  v.  Duke 


I'JI 

72 

230 

262,  639,  078 

217 

144,  101 

138,  141 

5G8 

195,  205 

676,  G78,  681 

903  a 

630 

171 

218 

485,  910,  932 

511,  615 


V.  Northumberland  357,  359,  360,  366, 

372,  390 

t).  Silk  614,  (i  1 5 

Jesse  V.  Uarnett  884 

Jessup  r.  Ilulse  590 

Jesus'  College  v.  Bloom  871 

Jesus'  College  Case  700 

Jevon  V.  Bush  17,  54,  482 

Jewell  V.  Clay  147 

Jewett,  Ex  parte  610 

V.  Davis  685 

V.  Iowa  Land  Co.  223 

V.  Miller  195,  205 

V.  Palmer  221 

V.  Tucker  873 

V.  Woodward  596,  894,  918 

V.  Yardlev  44 

Jewson  V.  Moiilson  239,  629,  632,  633,  636, 

641 

Jobson,  In  re  622 

V.  Palmer  441 

Jochumsen  r.  Suff.  Sav.  Bank  929 

Jodrell  r.  Jodrell        32,  118,  185.  620,  672 

Joel  r.  Mills  248,  388,  555 

John  r.  Battle  127 

V.  Bennett  197 

V.  Smith  700,  720 

John  V.  Farwell  Co.  v.  Sweetzer  242 

Johnes  v.  Loekhart  648,  649 

Johns  V.  Herbert  465 

V.  Johns  511  a,  764,  820  n 

V.  Sertreant  779 

John's  Will,  Jn  re  700,  720 

Johnson,  Ex  parte,  457 

Johnson,  fn  re  511  r 

t'.  Aston  826 

V.  Ball  93 

V.  Barber  427 

V.  Bcnttie  603 

V.  Bennett  195,  205 

r.  Billups  117 

r.  Blackman  195 

V.  Bridgewater  Co.  545,  550 

V.  Calnan  225 

V.  Cary  301 

V.  Cawthorn  239 

V.  Chisson  680 

V.  Clark  602  d 

V.  Clarkson  93,  160,  715 

t>.  Currin  380 

V.  Deloney  82 

V.  Dorsev  602  x,  782 

r.  Dougherty  126,  137 


Johnson  v.  Eason    602  o,  602 q,  602  u,  602a;, 

602  te 

V  Fesemeyer  202 

V.  Kreeth  671 

V.  Gallagher  658,  659,  663 

V.  Giles  166 

V.  Glasscock  182 

V.  <jos8  451 

I'.  Harvey  591 

V.  Henry  602  ee 

V.  Humphrey  863 
V.  Johnson  131, 144, 160,  200,  225,  299, 
421,  449,  511  a,  540,  541,  544,  545, 
639,041,  729,851,  921 

V.  Kelly  160 
V.  Kennelt          597,  795,  796,  801,  802 

V.  Krassiu  126,  226 

I'.  Lawrence  918 

V.  Leman  907 

V.  Lewis  847 

V.  Longmire  748 

V.  Malcorab  585 

t'.  Matsdorf  146,  147 

V.  Mavne  748 

V.  Medlicott  191 

V.  Milksopp  564 

V.  Miller  471 

V.  Moore  551 
V.  Newton                    443,  446,  462,  463 

r.  Prairie  860 

V.  Prendergast  462 

V.  Quarles  126,  139 

V.  Richardson  137 

V.  Kichev  847 

V.  Roland  259 

V.  Ronald  79 

V.  Rowlands  112 

V.  Riinyan  677 

I'.  Simpson  275 

V.  Sirmans  815  c 

V.  Smith  34,  855,  863 

V.  Stanton  511  c 

V.  Swire  845 

V.  Telford  910 

V.  Thweatt  590 

V.  Turner  602  s,  602  bb 

V.  Vail  678 

r.  Van  Wyck  202 

V.  Ward  122 

V.  Webster  347.  348 

I'.  Williams  602y,  602ee 

Johnson's  Appeal  262,  459,  817 

Johnston,  In  re  373 

V.  Eason  771,  787 

V.  Johnston  679 

V.  Knight  511  c 

V.  McCain  803 

V.  Spicer  122 

r.  Swan  704,  705,  712 

V.  Todd  903  a 

Johnstone  r.  Baker  773 

V.  Browne  658 

V.  Lumb  668 

Joice  V.  Tavlor  171 

Joliffe,  Ex  parte  929 

V.  East  903  a 

V.  JoUand  4-32 

JoUands  r.  Burdett  670,  071 
Jones,  In  re                      280,  401,  406,  929 


Ixxxviii 


INDEX   TO   CASES   CITED. 


[References  are  to  sections.] 


Jones  V.  Atchison,  &c.  R.  Co. 
V.  Bradley 


liush 
V.  Clifton 
V.  Cole 
V.  Dawson 
V.  Dexter 
V.  Dougherty 
V.  Elkins 
V.  Foote 
V.  Foxall 
V.  Fulghum 
V.  tiediles 
V.  Gibbons 
V.  Goodcbild 
V.  Graham 
V.  Greatwood 
V.  Green 
V.  Habersham 
V.  Harris 
V.  Henderson 
V.  Higgins 
V.  Holladay 
V.  Home  S.  Bank 
V.  Hughey 
V.  Jones 


466 

157 

301 

104 

330 

552,  554,  602  v,  910,  913 

430 

275,  818 

127 

257 

468,  470,  471 

276  a 


72 
438,  633 
157,  434 
129 
117 
730 
741 
659,  602 
803 
365,  849 
790 
805 
133 
218,  248,  275,  281,  330,  400, 
580,  766,  876 
Julian  457 

Kearney  170,  196 

Langton  301 

Lewis     407,  441,  443,  457,  520,  900, 
901,  914 
Lock  97,  99 

Llovd  82,  195,  851 

Lord  Saye  and  Seale    301,  305,  308, 
310 


,  Macrgs 
.  McKee 
,  McPhillips 
.  Miller 
,  Mitchell 
.  Moore 
,  Morgan 
,  Morley 
,  Morrall 
.  Nabbe 

Neale 

Newell 

Obincham 
,  Parsons 
,  Powell 
,  Powles 
,  Price 
,  Reeder 
,  Ricketts 

Roberts 
.  Salter 
,  Scott 
,  Selby 
,  Seligman 

Shaddock 
,  Sherrard 
,  Slaughter 
,  Slubey 
,  Smith 
,  Stanlev 
,  Stocke'tt 
,  Strong 
,  Suffolk 


397,  584 

181 

275 

380 

160 

82 

347,  358,  359 

108 

468 

86 

602  3 

171 

95,  100,  103,  109 

803 

474,  538,  913 

218,  219 

492,  505,  597,  795 

212 

188 

203 

652,  653,  671 

558,  559,  601 

569 

762 

217,  334,  828 

554 

133 

82,  85 

428,  814 

421 

268,274,280,901,918 

330 

518 


Jones  V.  Torin 

V.  Tripp 

V.  Tucker 

V.  Turberville 

V.  Ward 

V.  Waste 

V.  Whitebread 

V.  Williams  697, 

V.  Wilson 

V.  Winwood 

V.  Zollicoffer 
Jones's  Appeal   404,415,416, 

Jones's  Case 
Joor  V.  Hodges 

V.  Williams 
Joralemon  v.  Van  Riper 
Jordan,  Ex  parte 

V.  Cheney 

V.  Holkam 

V.  Hudson 

V.  Jordan 

V.  IMoney 

V.  Roach 
Jorden  v.  Morey 
Jordon  v.  Hunt 
Jortin,  Ex  parte 
Josling  V.  Karr 
Josseh-n  v.  Josselyn 
Jouffret  V.  Loppin 
Jourolmon  v.  Massengill 
Jowitt  V.  Lewis 
Joy,  Re 

V.  Campbell        404,  419, 

V.  J.  &  M.  Plank  R.  Co. 
Joyce  V.  Gunnels 

17.  Hutton 

V.  Joyce 
Joyner  v.  Conyers 
Jubber  v.  Jubber 
Judah  V.  Judd 
Judd  V.  Dike 

V.  Haseley 

V.  Moseley 
Judge  V.  Booze 

V.  Jackson 

V.  Mathes 

V.  Pfaff 

V.  Wilkins 
Judice  V.  Prevost 
Judkin's  Trusts,  In  re 
Judson  V.  Corcoran 

V.  Gibbons  259, 

V.  National  City  Bank 
Juler  V.  Juler 
Julian  V.  Reynolds 
Jull  V.  Jacobs 
Junction  Railw.  v.  Ruggles 
Justices  V.  Haygood 
Justin  V.  Wynne 
Juvenal  v.  Jackson 
Juzan  f.  Toulmin 


Kahn  v.  Chapin 

V.  Gunherts 

Kampf  V.  Jones 


248,  250,  251 

209 

511c 

866 

468 

672 

591 

704,  724,  814 

82,  83 

784 

218 

417,418,420, 

421,  501 
918 
303 

610,  828 
920 
449 

243,  828 
516 
238 
843 
208 

380,  392 
870 
468 
725 
881 
615 
568 
312,  815  a 
754 
705 
421,  828,  837 
754 

282,  540 
108 

277,  287 
810 
112,  117,  620 
438 
468 
137 
226 
780 
918 
453 

226,  764 
187 
264 
615 
438 
261,  262,  270 
225 
94 

195,  205 
511a 

754,  758 

891 

829 

221 

175, 187,  230 


195,  869 

212 

380,  390 


INDEX   TO   CASES   CITED. 
[Referencea  are  to  eections.] 


Ixxxix 


Kane,  Tn  re 

V.  Hloodgood 

r.  Kane 
Kane's  Appeal 
Kane  County  v.  Ilerringtou 
Kantrowitz  v.  Prater 
Karr  v.  Karr 

t'.  W'aslibura 
Kates  r.  liurton 
Kator  r.  Pembroke 
Katzenber^'er  v.  Aberdeen 
Kaiiffelt  r.  Uower 
Kaufman  v.  Crawford 
Kavanagh,  In  re 
Kay,  In  re 

V.  Crook 

V.  States 

V.  Smith 
Kaye,  In  re 

V.  Powell 
Kayser  r.  Maughan 
Kead}'  r.  White 
Kean  v.  Kean 


C12 
228,  855,  863,  804 
471 
277 
227,  240  (I 
080 


471,  472 

70 

507 

828 

749 

232 

458,  607,  836,  842 

400 

848 

208 

IfiU 

851 

51,  275 

549 

166,  226 
122 
248 


299, 


Keane  v.  Kobarts 


Kearnan  v.  Fitzsimon 
Kearney  r.  Kearney 
Kearsley  i'.  Woodcock 
Keates  v.  Burton 

V.  Cadogan 
Keating  v.  Keating 

V.  Stevenson 
Keaton  v.  Cobb 

V.  Greenwood 

V.  McGwier 

V.  Scott 
Kebble,  Ex  parte 
Keble  v.  Thompson 
Kedian  t'.  Hoyt 
Kee  r.  Kee 

V.  Yasser 
Keech  t".  Sanford 
Keefer  v.  Schwartz 
Keeler  v.  Keeler 
Keen  v.  Walbank 
Keene  v.  Deardon 


246,  403,  789,  809,  810, 
811,  907 
200 
470  a 
386  b,  388,  555 
508,  510 


173,  179 

709 

437  a 

132,  144 

863 

804 

680 

616,  019 

419,  453 

437  a 

918 

064 

196,  538 

511c 

894 

315 

305,  307,  309,  315, 

349,  353,  354 

282 


Keene's  Appeal 

Keep  V.  Sanderson  590 

Kegerreis  r.  Lutz  120 

Keilev  v.  Keily  511  a 

Keily  r.  Fowler  379 

V.  Monck  515 

Keim  r.  Lindley  408 

Keissflbrock  v'.  Livingston  220 

Keister  v.  Scott  794 

Keith  V.  Horner  238 

V.  Miller  91,  133 

V.  Wheeler  347 

Keith  &  P.  Coal  Co.  v.  Bingham  730 

Kekewich  v.  Manning  68,  98,  101 

102,104,105,  111,438 

Kellaway  v.  Johnson  460,  467,  509 

847,  849 

Keller  v.  Ashford  200 

r.  Auble  211 

V.  Nutz  241 

V.  Ruiz  680 

r.  Strong  79 


Keilett  r.  Kellett  151 

r.  liathbun  463,  4C8 

Kelley  v.  Babcock  82,  594 

t''.  Boetlcher  106,  855 

V.  Jenness  126,  130,  132,  246  a 

Kellogg  V.  Carrico  774 

V.  Ilale  300 

V.  Slauson  590 

V.  Western  El.  Co.  805 

V.  Wood  126 

Kellogg's  Case  918 

Kelliim  r.  Smith  215 

Kelly  V.  Browning  166 

V.  Drew  678 

V.  Johnson  126,  133 

f.  Karsner  76, 143 

V  Lank  591 

V.  McNeill  133 

V.  Nichols  83,  706,  727 

I'.  Kichardson  560 

V.  Scott  336 

KeJsal  V.  Bennett  219 

Kelsey  v.  Snyder  139 

V.  Western  562 

Kelso  V.  Kelso  142 

V.  Tabor  660 

Kemmis  v.  Kemmis  615 

Kemp  v.  Burn  900 

V.  Burr  821 

V.  Kemp  8,  251,  507,  511,  570 

V.  McPherson  570,  796 

Kempf  I'.  James  888 

Kempton  v.  Packman  190 

Kenaday  r.  Edwards  277,  770 

Kenan  r.  Hall  471 

V.  Paul  918 

Kendall  v.  Gleason  920 

V.  Granger  159,  711 

V.  Mann  126,  133 

V.  Micfeild  13 

V.  New  England,  &c.  918 

Kenge  v.  Delavall  662 

Keniston  v.  Mavhew  82 

Kennedv  v.  Baker  127,  828,  865 

V.  r)alev      122,  216,  433,  828,  830,  863 

V.  Fury  17,  328 

V.  Gramling  315 

I'.  Hammond  602 Jf 

V.  Hoy  99 

V.  Keating  129,  135 

t'.  Kennedy  189,  226,  805 

r.  Kingston  251,  255 

V.  JlcCloskey  127 

V.  Strong  463 

V.  Turnley  293 

V.  Ware  109,  111 

r.  Winn  259,  261,  865 

Keiua-dv's  Appeal  912 

Kennell'  v.  Abbott  182 

Kenniv  r.  I'dail  631,  632,  636 

Ken  rick  j'.  Beauclerk  305,  308 

Kensington  v.  Bouverie  554 

r.  i)olland  647,  649,  651 

Kenson's  Case  739 

Kent,  Kx  parte  617 

r.  Chalfant  197 

f.  Dunham  710 

r.  (Jerhard  232 

V.  Hutchins  900 


xc 


INDEX   TO   CASES   CITED. 
[References  are  to  aections.] 


870 

227 

252,  511  b 

467,  670 
609 
364 
658 
324 
654 

787,  874 
58 

624,  672 
471 

151,  158 

238 

38,  231 

195,  206,  380 

421 

403 

248,  473 
421 


Kent  V.  Jackson 
V.  Mehaffey 
V.  Morrison 
V.  Plumb 
Kentish  v.  Kentish 

V.  Newman 
Kenyon  v.  Farris 

V.  Kenj'on 
Keogh  V.  Cathcart 
Keen  V.  Magawley 
Kep  V.  Ban  It  of  New  York 
Ker  I'.  Buxton 

V.  Snead 
Kerlin  v.  Campbell 
Kern  v.  Hazlerigg 
Kerr  t'.  Day 

V.  Dungannon 
V.  Kirkpatrick 
t".  Laird 
V.  Verner 
V.  Water 
Kerrigan  i-.  Tabb 
Kerrison  v.  Stewart 
Kershaw  v.  Snowden 
Ketchum  v.  Ketchum 

V.  Mobile  &  Ohio  R.  Co. 
V.  Packer 
Ketrick  i'.  Barnsly 
Kettle  V.  Hammond 
Kettleby  r.  Atwood 
Kevan  v.  Branch 
Key  V.  Hughes 
Keyes  v.  Carleton 

V.  Wood 
Keyser's  Appeal 
Kiah  V.  Grenier 
Kibbee  v.  Hamilton  Ins.  Co. 
Kibbett  v.  Lee 
Kiddill  V.  Farnell 
Kidney  v.  Coussmaker      556,  570,  867,  872 
Kightley  v.  Kightley  569 

Kilbee  v.  Sneyd  402,  403,  422,  424, 

445,  851,  914 
Kilboum  v.  Sunderland 
Kildare  v.  Eustace 
Kilford  V.  Blaney 
Kilgore,  Ex  parte 
Killam  v.  Allen 
Killar  v.  Beclor 
Killeran  v.  Brown 
Killett  V.  Killett 
Killick,  Ex  parte 

V.  Flexney 
Kilpatrick  r.  Johnson 

V.  Kilpatrick 
Kilpin  r.  Kilpin 
Kilroy  v.  Wood 
Kil vert's  Trusts,  In  re 
Kilvington  i-.  Gray 
Kimball  i'.  Ives 
V.  Johnson 
i>.  Morton 

t'.  Reading  — :  ---, 

V.  Universalist  Society  in  Sweden  748 
Kime  v.  Welpitt  616 

Kimm  v.  Weippert  680 

Kimmel  v.  McRight  144,  149 

V.  Smith  171 

Kinard  v.  Hiers  25,  215 


715 
873 
122 
891 
275 
875 
182 
587 
307 

591,  592 

443 

104 

602  n 

304 

371,  391 

172 

5116 

100,  929 


801 

40,  71 

571 

204 

313,   393,  398 

639 

226 

151,  152,  154 

048 

196,  538 

396,  398,  738 

239 

75,  77,  86, 144,  146,  147 
815  a 
714 
550 
863 
396,  398,  738 
86 
440.  459,  465 


Kincaid  v.  Thompson 
Kincaird's  Trusts,  In  re 
Kincell  v.  Feldman 
Kinch  V.  Ward 
Kinchant  v.  Kinchant 
Kinder  t- .  Miller 

V.  Shaw 
King,  Re 

V.  Akerman 

V.  Bellord 

V.  Boston 

V.  Bushnel 

V  Carmichael 

V.  Coggan 

V.  Cotton 

V.  Cushnian 

V.  Denison 

V.  Donnelly 

V.  Duntz 

V.  Eggington 

V.  Hake 

V.  Hamlet 

V.  Holland 

v.  Jenkins 

V.  King 

V.  Lawrence 

V.  Leach 

V.  Lucas 

V.  Merchants'  Exchange  Co 


129, 

54,  151, 

138,  240, 

602 


441,  827  a, 


Mildmay 

Mitchell 

Morrison 

MuUins 

Pardee 

Parker  312,  320 

Phillips 

Remington 

Roe 

Rundle 

Savery 

Stone 

Strong 
,  St.  Catharine's  Hall 
,  Talbott  441,  454,  455, 


I'.  Taylor 

V.  Townshend 

V.  Whitely 

V.  Whiton 

V.  Wilson 

V.  Wise 

V.  Woodhull 
King's  Mortgage 
Kingdom  v.  Bridges 
Kingdon,  In  re 
Kingham  v.  Lee 
Kingland  v.  Rapelye 
Kingman  v.  Winchell 
Kingsbury  v.  Bumside 

V.  Powers 
Kingston  v.  Lorton 
Kinmouth  v.  Brigham 
Kinnard  v.  Kiunurd 

V.  Thomjjsou 
Kinne  r.  Webb 
Kinner  v.  Walsh 
Kinney  v.  Ensminger 
v.'Harvey 


160 


245 
633,  636 
22G 
297 
201 
137 
243 
901,  902 
312 
19.52 
135 
822 
866 
434  a 
213 
428,  915 
152,  153 
259,  280 
X,  602  aa 
837 
580 
183 
64 
17 
898,  914 
264,  343 
343 
658 
299, 
602  i 
325 
153 
927 
922 
141 
705,  737 
269 
195 
474 
718 
201,  202 
411 
903  a 
743 
459,  400, 
468 
90S  a 
299,  351 
307 
709 
434,  G:)0 
209 
,  272,  748 
338 
144,  146 
5116 
49,  121 
359 
827  rt 
82 
200,  607 
112,  855 
545,  547 
541 
593 
122 
680 
237 
238 


INDEX   TO   CASES   CITED. 
[References  &re  to  sectiuna.] 


XCl 


Kinney  v.  Ileatley 
Kiiisey  v.  State 
Kinsler  v.  Clark 
Kinslev  r.  Auies 

v.'ljoyd 
Kintncr  v.  Jones 
Kintzinger  Estate 
Kinzie  v.  Penrose 
Kip  c.  Bank  of  New  York 

r.  Deniston 
Kirby  v.  Masly 

V.  Schoonmaker 

V.  Taylor 
Kiricke  r."  IJrausbcy 
Kirk  t.  Clark 

r.  I'uulin 

V.  Webb 
Kirkbank  r.  Hudson 
Kirkey  v.  Lacy 
Kirkliam  v.  Smith 


918 
612 

2a9 

602  M 

130 

127 

63'J 

84 

463 

416,  420 

900 

599 

851 

152 

874,  878 

310,  048 

137,  841 

700 

078 

348 


Kirk  land  v.  Cox        312,  315,  320,  328,  520 

V.  Narramore  272 
Kirknian  v.  IJooth             433,  454,  877,  904 

Kirkpatrick  v.  Beauford  678 

V.  Davidson  86,  120 
V.  McDonald          77,  98,  127,  133,  330 

V.  Kogers  5"0 

Kirsch  r.  Tozier  790 

Kirwan  v.  Daniels  593 

Kirwan's  Trusts,  Jn  re  248 

Kirwin  r.  Weippert  655 

Kirwood  v.  Thompson  199 
Kisler  V.  Kisler                 126,  127,  134,  215 

Kissam  v.  Anderson  122 

V.  Dierkes  602  £f,  784 

V.  Edmundson  591 

Kitchen  i'.  Bradford  828 

Kittel's  Estate  800 

Kittleby  v.  Lamb  ^28 

Kittredge  v.  Fulsome  93 

Klanip  I'.  Klamp  l-iS 

Klapp  V.  Shurk  591,  593 

Kleberg  v.  Bond  456 

Kleiser  v.  Scott  238 

Klepner  f.  Laverty  -^71 

Kline's  Appeal  127,  144 

Kline's  EsUite  213 

Klock  t).  Cronkhite  602  5 

Klotz's  Estate  908 

Knapn  v.  Noyes  513 

V.  Smith  678,  686 
Knatchbull  v.  Fearnhead  846,  848,  877,  924 

V.  Hallett  837 

Kneeling  v.  Brown  569 

Kneller  V.  Shreve  815  « 

Knight  V.  Boughton  112,  114,  116 

V.  Bowyer  745,  850,  863 

V.  Brawneer  639 

V.  Cameron  514 

V.  Fisher  122 

V.  Garborough  254 

V.  Havnie  415 

V.  Hunt  212 
V.  Knight  114, 116,  237,  653,  654,  828. 

V.  Leak  633 

V.  Leary  126 

V.  Loomis  262,  204,  500 

V.  Maioribanks  199 
V.  Martin                476  a,  901,  922,  928 


Knight  V.  Packer 
V.  Plymouth 
V.  Robinson 
V.  Selby 
t'.  Whitehead 

Knight's  Trust 


590 
406,  457,  465,  914 
338 
357 
667 

...... 927 

Kniskern  v.  Lutheran  Churchea      733,  748 

Knoch  V.  Van  I'.ernuth  790 

Knorr  v.  Kavmoud  858 

Knott,  Kx  parte  218,618 

V.  Cottee      115, 116,  461,  468,  471,  472 

898,  902,  907 

V.  Hill  188 

Knottman  v.  Peyton  213 

KnoufF  V.  Thompson  143,  149 

Kuowies,  In  re  580 

V.  Knowles  891 

V.  McCamley  600 

V.  Spence  855 

Knowlton  v.  Atkins  83 

V.  Bradv  453,  468 

Knox  V.  Bigelow  891 

V.  Hotham  119 

V.  Jenks  302 

V.  Jones  382,  391 

V.  Knox  112 

V.  McFarran  75,  77,  82,  133, 137 

V.  Pickett  421,  891 

Knox's  Trusts,  In  re  900 

Knuckolls  V.  Lea  175 

Knust,  J-:x  parte  240,  282 

Knye  v.  Moore  438,  877,  878 

Kobarg  i'.  Greeder  145 

Koch  V.  Koth  239 

Koeber  v.  Sturgis  634 

Koenig's  Appeal  304,  312 

Kofoed  V.  Gordon  202 

Kopp  V.  Gunther  91 

Korns  i'.  Shaffer  195 

Kountze  v.  Kennedy  177 

Kraemer  v.  Dustermann  206 

Kraft  V.  Lohman  275 

Kraken  v.  Shields  456 

Kramer  v.  Arthur  218 

Krankel  v.  Kraukel  104 

Krauth  v.  Thiele  82 

Kreb's  Estate  305,  502 

Kreider  v.  Boyer  640 

Kreitz  v.  Frost  892 

Krumbaar  v.  Burt  639,  641 

Krupp  V.  SchoU  213,  641 

Kruse  r.  Stephens  205 

Kuhn  I'.  Newman  299 

Kuntzleman's  Trust  Estate  920 

Kupferman  t'.  McGehee  815  a,  815  66 

Kuster  r.  Howe  344 

Kutz's  Appeal  803 

Kvle  r.  Barnett  454,  404,  470,  471 

V.  Tait  221,  236,  237 

V.  Wills  79 


Lacev,  Ex  parte       195,  197,  209,  285,  428 
Lachlan  r.  Reynolds  380 

Lackey's  Estate  461 

Lacon  r.  Lacon  862 

Lacoste  v.  Splivalo  453 


xcu 


INDEX  TO   CASES   CITED. 
[References  are  to  sections.] 


Lacy  V.  Wilson 

218,  222 

Lad  broke,  Ex  parte 

780 

Ladbrook  v.  Bleaden 

271 

Ladd  V.  Chase 

252,  511  a 

V.  Ladd 

5116 

Laddington  v.  Kine 

379 

Lade  v.  Holford 

349,  350,  355,  3!>5 

Lade  v.  Lade 

12G 

Lad}'  Mice's  Charity 

724 

Lady  Wellesley  v.  Earl  of  Mornington 

511a 

Lafferty  v.  Farley  863 

Lagow  V.  Badollet  232,  237,  238 

Lahey  v.  Kortright  277,  499 

Laidfaw  i;.  Organ  171,  180 

Laing's  Settlement,  In  re  453 

Lajoye  v.  Prirnm  929 

Lake  v.  Currie  511  c 

V.  De  Lambert  48,  51,  54,  275,  282 

V.  Freer  82 

V.  Gibson  132,  136 

V.  Lake  150 

Lakin  v.  S.  B.  M.  Co.  231 

Lallance  v.  Fisher  786 

Lamar  v.  Pearre  856 

V.  Simpson  62 

V.  Walton  264 

Lamas  v.  Baj'ley  135 

Lamb  v.  Davenport  231 

V.  Goodwin  602  d<l 

V.  Lamb  162,  551 

V.  Lynch  386 

Lamb's  Appeal  464,  466 

Lambe  v.  Orton  101,  102,  105 

Lambert  v.  Parker  616,  619 

V.  Stees  124 

V.  Thwaites  250,  258 

Lambeth  Charities,    In  re  699 

Lamerson  v.  Morvin  602  y 

L'Amoureux  v.  Crosby  35 

V.  Van  Rensselaer  526,  660 

Lam  pet's  Case  68 

Lamphear  v.  Buckingham  762 

Lampley  v.  Watson          647,  666,  677,  684 

Lamplugh  v.  Lamplugh     54,  143,  144,  146 

Lanahan  v.  Latrobe  596 

Lancashire  v.  Lancashire  273,  493 

Lancaster  Charities  278 

Lancaster  v.  Evors  431 

V.  Dolan           310  a,  652,  655,  661,  768 


V.  Elce 

V.  Thornton 
Land  Credit  Co.  v.  Fermoy 
Landen  v.  Green 
Lander  v.  Weston 
Landers  v.  Dell 
Landis  v.  Saxton 
Landon  v.  Hutton 
Lands  Allotment  Co.,  In  re 
Lane,  In  re 

V.  Colman 

V.  Debenham 


V.  Dighton 
V,  Eaton 
V.  Ewing 
V.  Lane 
V.  Page 
V.  Tidhall 


593,  600 

308 

207,  875 

894 

808 

382 

128,  803 

143,  163 

803 

618 

918 

294,  340,  414,  493,  494, 

505 

139,  835,  837,  839,  842 

705,  730 

79,  98.  100,  103 

112,  147,  861 

511a 

602  0,  602  X,  602  ee 


Lane's  Appeal 
Lanesborough  i".  Fox 

V.  Kilmaine 
Lang  V.  Kopke 

Langdale's  Settlement  Trust,  In  re 
Langdon  v.  Astor 

V.  Sinison 
Laugford  v.  Auger 

V.  Gascoyne 


468 
880 
219 
398 
400 
93 
381,  395 
336 
402,  404,  419,  444,  467, 
849 
908,  910 
94,  150,  157 
226 
433,  863 
818 
351,  354 
795 
76 
203 


V.  Mahoney 

Langham  v.  Sandford 

Langley  v.  Brown 

V.  Fisher 

V.  Hawk 

V.  Sneyd 

Langmead's  Trusts 

Langsdale  v.  Woollen 

Langstaff  v.  Taylor 

Langston  v.  Olivant  329,  417,  453,  460,  539 

Langton  v.  Astrey  828,  829 

V.  Brackenburgh  614 

V.  Horton  68 

Langworthy  v.  Chadwick  541 

Lanier  v.  Brunson  918 

Lanning  «.  Lanning  585 

Lanoy  v.  Athol  577,  613,  614,  635 

Lansdowne  v.  Lansdowne  134,  871 

Lansing  v.  Lansing  262 

Lanterman  v.  Abernathy  97 

Lantry  v.  Lantry  134 

Lantsburv  v.  Collier  498 

Lape  V.  Taylor  901 

Laprimaudaye  v,  Teissier  644 

Larco  v.  Casaneuava  198 

Large 's  Case  388,  555 

Larkin  v.  Mason  576 

Larkins  v.  Biddle  184 

V.  Rhoades  132,  137 

Larmon  v.  Knight  162,  171,  243 

Larod  V.  Douglass  418 

Larrabee  v.  Hascall  82 

Larrow  v.  Beam  218 

Lashmar,  In  re  816  a 

Laskey  v.  Perrysburg  Board,  &c.         511  b 

Lasley  v.  Lasley  275 

Lassence  v.  Tierney  360,  511  a 

Lassiter  v.  Dawson  627 

La  Terriere  v.  Bulmer  551 

Latham  v.  Henderson  129 

Lathrop  v.  Bampton  828,  835,  843 

V.  Baubie  276,  917 

V.  Gilbert  127 

V.  Hovt  134, 135 

V.  Pollard  195 

V.  Smalley  276,  459,  472,  900,  903,  918 

V.  Tracv  770 

Lattimer  v.  "Hanson  262,  264,  268,  492 

Latouch  V.  Lacom  593 

Latouche  v.  Dunsany  876 

Latourette  v.  Williams  640 

Latrobe  v.  Baltimore  331 

V.  Tiernan  411,  415 

Lau's  Estate  145 

Laughlin  v.  Fairbanks  438 

Laurel  County  Court  v.  Trustees  343 

Laurens  v.  Jenney  299,  306,  309 

V.  Lucas  795 

Lauriat  v.  Stratton  873 


INDEX   TO   CASES   CITED. 
[Beferencea  are  to  Bections.] 


XCUl 


Lavender  v.  Stanton 
Laver  v.  Fielder 
Law  V.  liarchard 

V.  Butler 

V.  Mills 

V.  Skinner 
Lawes  v.  licnnctt 
Lawless  V.  Shaw 
I.awley  v.  Hooper 
Lawrence  v.  Bowie 

V.  Cooke 

V.  Davis 


582,  GIO,  793 
2U8 
183 
2'J8 
581; 
5'JO 
448 
120 
IG!) 

848,  876,  'J03 
121 
5'J3 


V.  Farmer's  Loan  &  Trust  Co. 

V.  I-awrenee 

V.  Maf,'K9 

t).  Smith 

V.  Stratton 

V.  Trustees,  &c. 
Lawrence's  Estate 
Lawrie  v.  Hanks 
Lawry  v.  Mctiee 
Laws  V.  Law 
Lawson  v.  Campion 

V.  Copeland 

V.  Lawson 

V.  Morton 
Lawton  v.  Ford 
Lay  V.  Brown 

V.  Duckett 
Laytin  v.  Davidson 
Layton  v.  Layton 
Lazarus  v.  Bryson 
Lea  V.  Grundy 
Lea's  Appeal 
Leach  v.  Asher 
Leach  v.  Ausbacker 

V.  Farr 


C02  c, 

G02  7 

75,  134 

533 

451 

222 

855 

382 

311 

97 

12G 

185 

900 

76,  511c 

324 

8G3 

627 

812 

171,  918 

631,  G3G 

205 

6G5 

58G 

859  a 

814 

104 


v.  Leach      112, 117,  118,  119, 195,  620 

Leader  v.  Tierney  1"^| 

Leadman  v.  Harris  5J1 

Leahy  v.  Leahy  ^78 

Leake  r.  Leake  l5,  321 

V.  Robinson  160,  383.  61fi.  022 

V.  Watson  329,  358,828 

Leakev  v.  Gunter  J5 

Leaphart  v.  Commercial  Bank  200 

Lear  v.  Lepgett  388,  555 

V.  Tritch  137,  79y 

Learned  v.  Welton  41'- 

Learovd  v.  Whiteley  4.j7 

Leavitt  v.  Beirne  508,  511,  655,  GOO 

V.  Peel  680,  7C8 

V.  Wooster  562,  571,  795 

Leaycraft  v.  Hedden  655 

Leazure  v.  HilleRas  *5 

Lechniere  v.  Brotheridge  Gob 

V.  Carlisle  98,  367,  858 

V.  Charlton  577 

i^.Lavie  112,113,116 

Le  Coif  V.  Armstrong  L.  II.  Co.  050 

Ledge  V.  Morse  13|' 

Ledlie  v.  Vrooman  "^>" 

Ledvard  V.  Chapin  602  j- 

Lee 'v.  Alston  S^l 

V.  Balcarras  •'•"' 

V.  Brown           476,  615,  618,  619,  624, 

915 

V.  Delane  476  a,  923 


Lee  V.  Egremont  632 

V.  Enos  34ti 

V.  Fernie  511  a 

V.  Ferris  77,  83.  93 

V.  Fox  127 

V.  Huntoon  77,  8.3 

V.  Kennedy  82 

V.  Lee  464 

V.  I'atten  206 

V.  Pennington  918 

V.  Prideaux  647,  648 

V.  Randolph  240,  280 

V.  San  key  806 

V.  Simpson  253,  511  c 

V.  Stuart  34 

I'.  Tinken  l'*^ 
V.  Young             276,  508,  509,  510,  511 

Leech  v.  Leech  107,  584 

Leed  v.  Beene  863 
Leedham  v.  (Jhawmer                907,  909,  910 

Leedoin  v.  Plymouth  Railway  757 
Leeds  V.  Amherst              446,  540,  869,  870 

V.  Munday  330,  337 

V.  Wakefield  493,  784 

Leeds  Banking  Co.  654,  659 

Leeke  v.  Bennett  541 

Leeper  ?'.  Taylor  83 

Lees  V.  Nuttall  206 

V.  Sanderson  422 

Lees'  Settlement  Trusts,  In  re  295 

Leferve  v.  Leferve  "^48 

Leffler  v.  Annstrong  260,  602  7' 

Le  Fort  v.  Delafield  245 

Lefroy  v.  Flood  112,  116 

Legiird  v.  Hodges  82,  122 

V.  Johnson  673 

Legare  v.  Ashe  183 

Legatt  V.  Sewell  366 

Le  Gendre  v.  Byrnes  863 

Legg  V.  Goldwire  361 

V.  Legg  639 

V.  Mackrell  271 
Legge  V.  Asgill                          699,  705,  712 

Lecirett  v.  Dubois  64,  131,  140 

V.  Grimmett  290,  297 
V.  Hunter            273,  281,  404,  414,  610 

V.  Leggett  133 

V.  Perkins  ""O 

Lech  V.  Legh  330 

L'llerminier,  In  re  541 

Lehman  v.  Lewis  13| 
V.  Rothbarth       128,  246,  468,  471,  917 

Leicester  r.  Foxcroft  182 

V.  Rose  212 

Leichrist's  Appeal  135 

Leich  r.  Ashburton  '69 
^t;.  Barry              411,  415,  416,  417,  421 

V.  Evans  803 

V.  Leigh  117 

V.  Llovd  '''S 

Leighton  v.  Leighton  245,  552 

Leiper  v.  Hoffman  65,  126,  131 

Leisenring  v.  Black  202 

Loitchr.  Wells  223,814 

I.eith  r.  Irwin  'J"5 

Leith  Banking  Co.  v.  Bell  1'9 

I.e  Jeune  c.  Budd  517 

Leland  v.  Hayden         ■  545 

Le  Lievre  v.  Gould  1' * 


XCIV 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Le  Maitre  v.  Bannister  113,  116 

Le  Marchant  v.  Le  Marchant  113 

Lenian  v.  McComas  1^20 

V.  Sherman  2'JG 

V.  Whitley  76,  83,  162,  226,  232 

Lemmond  v.  People  160,  900 

Leinoine  v.  Dunklin  County  803 

Lenaglian  v.  Smith  882 

Lench  V.  Lench  127,  128, 137,  138,  836,  839 

Le  Neve  v.  Le  Neve  217,  222,  223 

Lengenfitter  v.  Ritching  210 

Lennard  v.  Curzon  876 

Lent  V.  Howard  452,  920 

Leon,  In  re  56 

Leonard,  Re  547 

V.  Bell  391,  748 

V.  Diamond  309 

V.  Ford  602  b 

V.  Green  133,  149 

V.  Haworth  281 

V,  Leonard  185 

V.  Sussex  389 

V.  Powell  915 

Le  Page  v.  McNamara  724,  748 

Le  Prince  v.  Guillemont  592,  594 

Lerow  v.  Wilmarth  487,  553 

Leslie  v.  Bailie  927 

V.  Devonshire  159 

V.  Guthrie  68,  345 

V.  Leslie  83,  91 

Lesser  v.  Lesser  248,  511  b 

Lester  v.  Frazer  34 

V.  Garland  395 

L'Estrange  v.  L'Estrange  69 

Letch  V.  Hollister  159 

Letcher  v.  Letcher  126,  132,  137 

Letterstedt  v.  Broers  275 

Leuppie  v.  Osborn  658 

Le  Vasseux  v.  Scratton  641 

Lever  v.  Andrews  126 

Levering  v.  Heighe  34 

V.  Levering  34 

Levet  V.  Needham  150,  152 

Levi  V.  Evans  133 

V.  Gardner  845 

Levin  v.  Ritz  52 

Levis  V.  Kengla  79 

Levy  V.  Commonwealth  748 

'v.  Home  750 

V.  Levy  41,  45,  384,  716,  738,  741,  748 

Lewellin  v.  Cobbald  213,  826 

Lewes,  Ee  929 

r.  Lewes  119,  388,  555 

Lewin's  Trusts,  In  re  633 

Lewis,  Fx  parte  774 

V.  Adams  647 

r.  Baird  259,261 

V.  Beacon  559 

V.  Beall  299 

V.  Bradford  221 

V.  Building  &  Loan  Ass'n  126 

V.  Castleman  864 

V.  Covillaud  238 

V.  Darling  570,  571 

V.  Duane  60 

V.  Hill  475 

V.  Hillman  202,  206 

V.  James  324 

V.  Johns  678 


Lewis  V.  Limlley 
V.  Lewis 
V.  Madocks 
V.  McLemore 
V.  Mathews 
V.  Merritt 
V.  Nelson 
V.  Nobbs 
V.  Pead 
V.  Phillips 
V.  Price 
V.  Reed 
V.  Rees 
V.  Robinson 
V.  Scaperton 
V.  Stanley 
V.  Starke 
V.  Taylor 
V.  Thornton 
V.  Wells 
V.  Yale 


166 

76 

122,  837,  841,  842 

171 

272,  337,  648,  649,  651 

189 

21,  71 

422 

190 

221 

639 

404,  409 

319 

141 

236 

145 

347 

133 

562 

124 

660 


Library  Company  of  Philadelphia  v. 

Williams  511  a 

Liddard  v.  Liddard  112 

Lidderdale  i'.  Montrose  69 

Lide  V.  Law  186 

Life  Assoc,  v.  Siddall      265,  337,  476,  846, 
849,  850,  853,  860,  863,  869 


Liffler  v.  Armstrong 
Liggett  V.  Wall 
Light  V.  Scott 

V.  Zeller 
Lignon  v.  Alexander 
Like  V.  Bearsford 
Liles  V.  Terry 
Liley  v.  Hey 
Lill  V.  Neafie 
Li  Hard  v.  Turner 
Lillia  V.  Ayre 
Linch  V.  Cappey 

V.  Thomas 
Lincoln  v.  Aldrich 

V.  Allen 

V.  Newcastle 

V.  Winsor 

V.  Wright 
Lindenberger  v.  Metlock 
Lindley  v.  Cross 
Lindo  V.  Lindo 
Lindow  v.  Fleetwood 
Lindsav  v.  Harrison 

V.  Lindsay 
Lindsell  v.  Thacker 
Lindsley  v.  Dodd 
Lines  r.  Darden 

r.  Lines 
Lingan  v.  Henderson 
Lingard  v.  Bromley 
Lingenfelter  v.  Richey 
Lining  v.  Peyton 
Link  V.  Link 
Linker  v.  Smith 
Linley  v.  Taylor 
Linn  v.  Davis 
Linsley  v.  Sinclair 
Linton  v.  Boley 

V.  Shaw 
Linville  v.  Golding 
'  Lippincott  v.  Barber 


602  e 

217 

104 

145 

234 

636 

202 

113,  255, 710,  732 

275 

660 

655,  657 

464 

874 

876  a 

468 

359,  360,  373,  389,  390 

432,  895,  904 

226,  418,  419,  424,  848 

765 

680 

186 

288,  375 

646,  653 

863 

336,  337,  648 

861 

116,  253 

104 

84.  234 

848,  876,  879 

226 

598,  794 

75 

213 

9('8 

827  a 

142 

598,  602 .9 

277 

299 

592 


INDEX   TO   CASES   CITED. 
[Befereaces  are  to  aectionu.] 


XCV 


Lippincott  v.  Davis 
V.  Evens 
V.  Lippincott 
V.  Kidf^way 
V.  Warder 
V.  Wikoff 
Lipscomb  v.  Nichols 
Liptrot  V.  Ildlmea 


358 

501 
254 
541 
411 
12»j 
320 


Liquidation    Estates  P.   Co.   v.   Wil- 

louRhbv  347 

Lister  v.  Ilodgsoa  97,  98,  102 

V.  Lister  195,  198,  635 

r.  Feck  ford  864 

V.  Stubbs  200,  345 

Litchfield  I'.  Baker  449,  451,  547 

V.  Pickering  547 

V.  White  417,  590,  914 

Litt  r.  Randall  385 

Littell  V.  Grady  171,  848 

Little  V.  Bennett  284 

V.  Brown  237 

V.  Chadwick  122,  828 

V.  Little  477 

r.  Thome  476  a 

V.  Wilcox  24 

V.  Willford  701 

Little,  Re,  Harrison  v.  Harrison             671 

Littlefield  r.  Cole  511 

V.  Smith  438 

Littlehales  v.  Gascoigne  468,  903 

Little  Rock  &  F.  S.  Ry.  Co.  v.  Page      12!) 

Litton  V.  Baldwin  655,  661,  900 

Litzenberger's  Estate  415 

Livermore  v.  Aldrich  126,  137,  138 

V.  Jenckes  592 

Livesay  v.  Livesay  931 

Livesey  v.  Jones  712,  720 

Livingston,  /«  re  282 

Livingston  Pet'r  282 

V.  Ball  592 

V.  Hammond  613 

V.  Livingston    38,  48,  51,  95.  277,  562, 

564,  565,  566 

V.  Newkirk  562,  566 

V.  Stickles  537 

V.  Wells  468,  471 

Livingston's  Case  918 

Llewellin  v.  Mack  worth  858,  803 

Llewellyn's  Trusts  451,  551 

Llovd  r.  Attwood  851 

't).  Baldwin  597,795,796,800 

V.  Banks  438 

t>.  Branton  512,  513,  514 

V.  Brooks  97 

V.  Carew  379 

V.  Carter  126,  137 

V.  Currin  215 

V.  Gooid  112.  487 

V.  Griffiths  787 

V.  Hart  605,  611 

r.  Inglis  76 

V.  Lloyd  388,  555,  706 

V.  Loaring  885 

V.  Lvnch  137 

V.  Read  130,  144,  145,  146, 147 

V.  Rowe  918 

V.  Spillett    88,  125, 126,  138,  m.  152, 

162,  9(10 

V.  Taylor  501 


Lloyd  r.  Williams  600,  645 

r.  Woods  145 

Lobdell  V.  ilayea  324 

I^>ck  r.  Lock  532,  533 

I^)ckart  r.  Forsythe  248 

Locke  I'.  Farmers'  L.  &  T.  Co.          83,  541 

f.  Lomas  475,  597,  794,  799,  806 

Lockev  r.  Lockey  871 

Lockhart  v.  Canheld  328 

r.  Hardy  119 

f.  Northington  499,  501 

V.  Reillv  260,  457,  467,  848,  876 

V.  Wya'tt  690,  591 

Ixjckridge  v.  Foster  171 

Lock  wood  V.  Abdy  246,  907 

V.  Canfield  75 

V.  Fenton  623 

V.  Rilev  418 

V.  Stockholm  576 

Lockyer  r.  Savage  388,  555 

Loclon  I'.  Locton  121 

Loddington  v.  Kline  597 

Loder  v.  Allen  330 

Lodge  V.  Hamilton  639 

Loften  V.  Witboard  127 

Loft  house,  /n  re  612 

Loftia  V.  Loftis  60,  145 

Loftus  t".  Heriot  671 

Logan  V.  Birkett  672 

V.  Ueshay  569 

V.  Fairlee  623 

V.  Fontaine  918 

r.  Johnson  137 

r.  Logan  918 

V.  Simmons  213 

Lomax  v.  Lomax  616,  619 

r.  Pendleton  462.  468 

V.  Ripley          77,  83,  84,  93,  159,  511  a 

Lombard  v.  "Morse  200 

Londeuschlager  v.  Benton  759 

Londesborough  v.  Somerville  544 

London  v.  Garway  157 

r.  Richmond  885 

London    Ass'n    v.    London    &    India 

Docks  Joint  Committee  732 

London  Bridge,  In  re  787 
London  Gas  Light  Co.  v.  Spottiswood    877 

London    &    County  Banking  Co.   v. 

Bray  646 

London  R.  Co.  v.  Winter  226 

Long  V.  Blackall  379 

V.  Cason  621,  863 

V.  Clapton  431 

V.  Dennis  512,  515 

V.  Fox  171,  843 

V.  Israel  891 

r.  King  145,  206,  865 

V.  Lonsr  286,  520,  615,  796 

V.  Mathieson  7.02 

V.  Norcom  618 

V.  Rankin  784 

r.  Ricketts  514,  517 

V.  Serge r  126 

V.  Vallean  863 

V.  White  647,  660.  855 

Lonpbotham's  Estate  869 

Longfurd  v.  F.yre  51 1  b 

Louglev  r.  Hall  9i8 

V.  Lougley  157 


XCVl 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.  ] 


Longman  v.  Brown  714 

Longinate  v.  Ledger  18'J 

Lougmore  v.  Broom  251,  255,  258,  468, 

507 

r.  Elcum             112,  116,  117,  118,  620 

Longwith  v.  Butler  602  c,  602  x 

Longworth  v.  Goforth  215 

Longworth's  Estate  556 

Lonsdale  t'.  Beckett  291 

V.  Berchtoldt  119 

Lonsdale's  Estate  100 

Loomis  V.  Lift  212 

V.  Loomis  134,  438 

V.  McClintock  783 

V.  Spencer  56 

Loomis' s  Appeal  573 

Lord  V.  Bishop  127 

V.  Brooks  545,  547 

V.  Bunn  386  b,  555,  807 

V.  Fisher  589 

V.  Godfrey  451,  508,  509,  547 

Lord  and  Fullerton's  Contract,  Jn  re     264 

Lord  Paget' s  Case  585 

Lord  Sandwich's  Case  511  a 

Lorillard  v.  Coster  380 

Loring,  Ex  pai-te  236 

V.  Blake  381,  490,  507,  508 

V.  Brodie  511  6 

V.  Elliott  152 

V.  Hildreth  103,  158 

V.  Hunter  359,  370 

V.  Loring  117,  386  a,  620 

V.  Mass.  Horticultural  Society         288 

V.  Palmer  82 

V.  Salisbury  Mills  242,  670 

V.  Steinman  476  a,  928 

V.  United  States  Co.  588 

Lorings  v.  Marsh  499,  721,  724,  731 

Lorman  v.  Clarke  855 

Loscombe  v.  Wintringham       705,  725,  729 

Losey  v.  Stanley  476  a,  511  0,  920 

Losley  V.  Losley  817 

Loss  V.  Obrv  186 

Lothrop  V.  King  212,  591 

Lott  r.  Kaiser  171 

Louch,  Ex  parte  587 

Louisville  Trust  Co.  v.  Stockton  828 

Loud  V.  Barnes  137 

Lounsbury  J'.  Purdy  58,  126,  133,  142 

Lovat  V.  Leeds  627 

Lovatt  v.jKnipe  194 

Love  V.  Gaze  94,  150 

V.  Love  855,  858 

V.  ISIorris  910 

V.  Robertson  676 

Lovegrove,  Ex  parte  910 

Loveland  v.  Clark  770 

Lovell  V.  Minot  456 

Loveman  v.  Taylor  281.  918 

Loveridge  ?'.  Cooper  438,  926 

Lovering  v.  Minot  551 

V.  Worthington  382 

Lovesv  V.  Smith  213 

Lovett  V.  Famham  104,  248 

V.  Lovett  288 

V.  Taylor  76,  162 

Low  V.  Barchard  1^7 

V.  Bouverie  177,  554 

V.  Brinnan  764 


Low  V.  Carter 

V.  Geuiley 

V.  Manners 
Lowden  v.  Lowden 
Lowe  V.  Convention 

V.  Fox 

V.  Morgan 

V.  Morris 

V.  Peers 

V.  Suggs 

V.  Swift 
Lowell  V.  North 
Lowell's  Appeal 
Lowenstein  v.  Evans 
Lowery  v.  Erskine 
Lowman,  Jn  re 


846,  924 
246 
514 
841 
460 
646 
873 
918 
516 
277 
764 
602  o 
700 
21 
206 
382 


Lowndes  v.  Garnett  &  Mosely  Co.          752 

i;.  Lane  173,  176 

V.  Lowndes  616 

Lowrie's  Appeal  891,  918 

Lowr}'  V.  Commercial  Bank                     242 

V.  Commercial  &  Farmers'  Bank    814 

V.  Farmers'  Bank  225 

V.  Fulton  259,  261,  401,  463 

V.  Houston  641 

V.  Ticrnan  768 

Lowson  V.  Copeland  438,  440,  465 

Lowther  v.  Charlton  222 

V.  Lowther  206 

Lucas  V.  Atwood  594 

V.  Braudreth  357 

V.  Coe  910 

V.  Doe  500 

V.  Harris  602  n 

V.  Lock  hart  112,  117,  248 

V.  Oliver  60^2  v 

V.  Putney  754 

V.  Sanbury  &  Erie  R.  R.  Co.  589 

Luckett  V.  White  570 

Luckin  v.  Rushworth  196 

Lucknow  V.  Brown  613 

Luco  V.  De  Toro  863 

Luddy's  Trustee  v.  Peard  203 

Ludlam  v.  High  733 

Ludlow  V.  Flournov  171 

V.  Greenhouse'  693,  724,  732,  896 

V.  Hurd  159 

Ludwig  V.  Highley  58,  334 

Luke  V,  Kelmorey  119 

Luken's  Appeal         463,  468,  851,  918,  919 

Lulham,  In  re  196 

Lumb  V.  Milnes  634,  649 

Lumley,  Jn  re  671 

Lummis  v.  Big  Sandy  Land  Co.  845 

Lund  V.  Blanshard  877 

V.  Lund  463,  468 

Lundv  V.  Lundy  181 

Lunham  v.  Blundell  443 

Luplon  r.  Lupton  562,  569,  570,  796 

V.  White  447 

Lurton  v.  Rodgers  770 

Luscomb  V.  Ballard  262,  812 

Luscombe  v.  Grigsby  206 

Luse  V.  Reed  "45 

Lush  V.  Wilkinson  149 

Lush's  Trusts  634 

Lusk  V.  Lewis  715 

Lusk's  Appeal  1^5 

Luther  v.  Bianconi  8,  440,  532,  845 


INDEX   TO   CASES   CITED. 
LReferences  ue  to  Bections.] 


XCVU 


Lutheran    Cong,     v.     St. 

Church 
Luttrell  V.  Ohnius 
Lycan  v.  Millt-r 
Lyddoii  V.  Ellison 

V.  Moss 
Lyell  V.  Kennedy 
Lyford  v.  Thurston 
Lypon  V.  Lord 
Lylus  r.  Hattan 
Lyinan  v.  Parsons 
Lyn  V.  Ash  ton 
Lynch  v.  Cox 

V.  Dearth 

V.  Swayne 
Lyne,  Ex  parte 

V.  

V.  Crouse 

V.  Guardian 
Lyne's  Ex'rs  i'.  Crouse 
Lynn  v.  Beaver 

V.  Bradley 

V.  Lvnn 
Lynn's  Appeal 
Lyon  V.  Baker 

V.  Foscue 

V.  Lj'on 

V.  Marclay 

V.  Kiciimond 

V.  Saunders 

V.  Swayne 
Lyons  r.  Beard 

r.  Bodenhamer 

V.  Chamberlin 

V.  Jones 
Lypet  V.  Carter 
Lysaght  v.  Royse 
Lyse  V.  Kingdom      457,  462, 

Lyster  v.  Burroughs 
Ly tie's  Appeal 

M. 


Michael's 

733 

181,211 
901 
37G 
809 

803,  805 
137,  217,  828 
GIT) 
408 
608 
679 
126 
237 
520 
414 

648,  652 
661 
182 
652 
94 
639 
134 
540 

432,  904 

918 

195,  205,  428 

863 

184,  226 
184 
680 
918 
217 
403 
602  y 

569,  570 

511  a 

520,  818,  876, 

877,  900 
122 
680 


M.,  In  re 

Maberly  v.  Turton  249,  255, 

Mabie  v.  Bailey 

McAdam  v.  Logan 

McAfee  v.  Ferguson 

McAlister  r.  Burgess 

McAllister  v.  Barry 

V.  Commonwealth 

V.  Marsliall 

V.  Montgomery 
McAlpin  V.  liurnett  232,  238, 

McAlpinc  V.  Potter 
McArtee  v.  Engart 
McArthur  v.  Gordon 

V.  Uobiiison 

V.  Scott 
Macartney  r.  Blackwood 
Macaulav  i".  PiiiUips  630,  632,  633,  639, 
McAuley  v.  Wilson  724, 

McAulev's  Estate  83, 

McBee  V.  Loftes 
McBride  v.  Mclntyre       260,  281,  877, 

V.  Porter 

r.  Smyth  310  a, 

McBurney  v.  Carson 

VOL.  I.  —  g 


56 
615 

82 
294 
213 
705 
171 
463 
591 
136 
239 
917 
187 
142 
790 
873 
872 
645 
720 
163 
221 
910 
733 
052 
456 


459,  918 

79 
803 
231 
244 
592 

33 

460,  918 
828 
803 
471 
226 
1.38 
562 

82 

863 

235 

277,  820  a 

199 

773,  800 

38,  748 

34 

855 

184,  851 

69 

511  a,  803 

562 

861 

848 


McCahan's  Appeal 
McCahill  V.  McCahill 
McCain  v.  Peart 
McCall  r.  Coover 
V.  Harrison 
V.  Hinkley 
I'.  Parker 
V.  Peachy 
V.  Rogers 
McCallam  v.  Carswell 
McCall's  Estate 
McCalmoiit  r.  Rank  in 
McCammon  v.  Petitt 
McCamj)bell  v.  McCampbell 
McCandless  v.  Warner 
McCandlcss's  P^state 
McCandlish  v.  Keen 
Mc(,'ann  v.  Randall 
McCants  v.  Bee 
McCarogher  v.  Whieldon 
McCartee  v.  Orph.  iVsy.  See. 

V.  Teller 
McCarter  v.  Cornel 
McCarthy  v.  Decaix 
V.  Gould 
V.  McCarthy 
I'.  McCartie 
V.  Tyle 
JlcCartin  v.  Traphagen 
McCartney  v.  Bostwick    17, 126,  142,  149, 

240 

V.  Calhoun  195 

V.  Ridgwav  163 

McCarty  v.  Ball  855 

V.  iilevins  67 

V.  Pruet  2.32 

McCaskev  v.  Graff  215 

McCaskill  v.  Lathrop  &  Co.  815  c 

McCauly  t'.  Givens  757 

McCauseland's  Appeal  918 

McCaw  r.  Blunt  918 

V.  Galbraith  64, 131,  305,  327,  436 

McClain  v.  McClain  226 

McClanahan  r.  Henderson  538 

McClane  t'.  Shepherd  865 

McClean,  Ke  52 

McClellan  v.  McClellan  52 

McClelland  v.  Norfolk  So.  R.  Co.  225 

McClintie  v.  Ocliiltree  655 

McClintock  r.  Irvine  357 

McClug  V.  Leckv  591 

McClure  v.  Miller  98,  213 

V.  Purcell  165 

V.  Raben  183 

McClurg  V.  Wilson  520 

McCluse  V-  Doak  132 

McColgham  i'.  Hopkins  585 

McCol lough  r.  Sommerville  585 

McComas  v.  Long  128 

McComb  V.  Frink  225 

McCdmbie  v.  Davis  243 

ISIcCord  V.  O'Chiltree  701,  724,  748 

McCormick  v.  Garnett  632 

r.  Grogan  181 

V.  Malin  187 

McCosker  r.  Brady  280,  305,  341 

!•.  Golden  603 

McCown  r.  .lones  237 

McCoy  V.  liorwitz  456 


XCVUl 


INDEX   TO   CASES  CITED. 
[References  are  to  sections.] 


McCoy  V.  Poor  800,  801 

V.  Scott  245 

McCralien  v.  McCrahen  918 

McCrary  v.  Cleineuts  SOi 

McCraw  v.  Davis  189 

McCrea  v.  Purmont  843,  855 

McCreary  v.  Bomberger  253 

V.  Gewinner  82,  103 

McCreery  v.  Hamlin  780 

McCrockliii  v.  McCrocklin  672 

McCrory  v.  Foster  127,  640 

MacCubbin  v.  Cromwell  79,  82,  84,  85,  259, 

201,202,404,416,420,890 

McCue  V.  Gallagher  139 

McCuUoch  V.  Cowher  172 

V.  Hutchinson  591 

McCullough  V.  McCullough  453 

McCullough's  Appeal  614 

McCullum  V.  Coxe  330 

McCurdy's  Appeal  926 

McDearmon  v.  Burnham  79 

McDermith  v.  Voorhees  76,  81 

McDermott  v.  Kealy  610 

V.  Lorillard  782 

V.  Strong  594 

McDevitt  V.  Frantz  169 

McDonald  v.  Black  118 

V.  Bryce  160,  397 

V.  Donaldson  82 

V.  Hanson  774 

V.  King  500 

i        V.  Mav  230 

V.  McDonald  132,  863 

V.  Neilson  187 

V.  Richardson  430 

V.  Sims  863 

V.  Walgrove  546 

V.  Walker  339,  340,  494 

McDonnell  v.  Eaton  627 

V.  Harding  417,  443,  463 

V.  Hesilrigde  213 

McDonough  v.  McDonough  736 

V.  Murdoch  41,  42,  43,  126,  142 

McDougald  v.  Cary  341 

V.  Dougherty  594 

McDowell  V.  Brantley  817 

t).  Caldwell  618,911,918 

V.  Goldsmith  229,  230,  863 

I'.  J-awless  502 

r.  Peyton  182 

V.  Potter  639,  863 

Macduff,  In  re  712 

McEIhennv's  Appeal        469,  471,  891,  910 

McElvoy  V.  McElvoy  152,  312,  359 

Macey  v.  Shurmer  112 

McFiidden  v.  Hefley  449 

V.  Jenkyns  86,  96, 102,  105 

McFadin  v.  Catron  189,  295 

Macfarland  v.  Heim  658 

McFarland's  Appeal  511  a 

McFerrin  v.  White  680 

McGachen  v.  Dew  438,  467,  878,  885 

McGar  v.  Nixon  456 

McGarger  v.  Nogles  320,  652 

McGaughev  v.  Brown  196 

McGee  v.  Wells  126 

McGeorge  v.  Bigstones  Gap  Imp.  Co.      411 

McGibbon  v.  Abbott  253,  254 

McGill,  In  re  238 


V.  Doe  328 

McGillivray,  Re  275 

McGinity  v.  McGinity  137 

McGinn  v.  SchaeSer  890 

McGinnis  v.  Jacobs  137 

McGinness  v.  Barton  75 

McGirr  v.  Aaron  731,  748 

McGivney  v.  McGivney  141,  870 

McGlaughlin  v.  McGlaughlin  508,  570 

McGlinsey's  Appeal  065,  606 

McGovern  v.  Knox  82,  126,  144 

McGowan  v.  Gowan         126,  1.32,  133,  181 

McGrath,  In  re  603 

McGraw  r.  Daly  124 

McGregor  v.  Gardner  206 

V.  Hall  602  d,  602  j,  602  I 

V.  McGregor  884 

McGuire  v.  Devlin  803 

V.  McGowan  126,  139 

V.  Ramsey  126 

McHan  v.  Ordway  248 

McHardy  v.  Hitchcock  826,  827 

Machemer's  Estate  448 

McHugh  V.  McCole  448,715,  729 

McIUvaine  v.  Smith  386  a,  555 

Mcllvaine  v.  Gether  512 

Mcllwrath  v.  Hollander  223 

Mclntiie  v.  Agricultural  Bank  602  / 

V.  Hughes  109,  111 

V.  Janesville  38 

V.  Knowlton  678 

V.  Lanesville  724 

V.  Prior  861 

V.  Skinner  75 

Mclntire  Poor  School  v,  Zanesville 

Canal  Co.    38, 43, 121,  240, 460, 698, 700. 

742 

Mcintosh's  Estate  520 

Mclntyre,  In  re  568 

V.  Farmers'  Bank  87 

Mack's  Appeal  701 

McKamey  v.  Thorp  127,  815  c 

Mackason's  Appeal  555 

Mackay  v.  Coates  328 

V.  Douglass  108 

V.  Green  562 

V.  Langley  602  ./f 

V.  Martin  215 

McKay,  In  re  336 

w.'Carrington  38,  231 

McKee  v.  Griggs  79 

V.  Judd  69 

V.  Lamon  206 

V.  Vail  171 

Macken  v.  Hogan  438 

McKenna,  In  re  122,  850 

McKennan  v.  Phillips  240,  608,  672 

McKenney  v.  Burns  162 

Mackenzie  v.  Mackenzie  585 

V.  Taylor  900 

McKenzie  v.  Sumner  299 

McKeown  v.  Collins  233 

V.  McKeown  137 

McKern  v.  Handy  891,  804 

Mackey  v.  Maturin  605 

McKey,  Ex  parte  618 

Mackie  v.  Cairnes  591 

V.  Mackie  439,  450,  551 

McKilHp  V.  McKillip  235 


INDEX   TO  CASES   CITED. 
[References  are  to  sectiooB.] 


XCIX 


McKim  V.  Aulbach 

426 

V.  lilake 

845 

V.  Doaiie 

277 

284 

V.  Duncan 

918 

V,  Glover 

407 

V.  Handy 

2'j4 

V.  Hibbard 

408 

V.  Voorhiea 

72 

McKinlfv  V.  Irvine 

196 

881 

MeKiniiJv  v.  I'iukard 

187 

V.  lilioadus 

6'J3 

Mackiiitosli  V.  Ogilvie 

72 

i».  Towiiseiid 

741 

McKissick  r.  Tickle 

227 

McKnij;lit  r.  Brady 

232 

231» 

V.  I'iivlor 

228 

8G'J 

V.  Wilsii    468,  471,  472 

612, 

613, 

614, 

615 

91S 

McKonke3''s  Appeal 

113 

ll'J 

Mackri'll  v.  Walker 

920 

Makrctli  v.  Syiumons        38, 

217, 

232, 

233, 

235 

,  236 

239 

V.  Walmesley 

178 

Mackwortii  i".  Hinxman 

380 

MeLaiii  v.  Scliool  Directors 

732 

748 

McLaiiahaii  v.  McLaiiahaa 

75 

t'.  W^'aiit 

570 

McLune  i'.  Jolinsoa 

1G6 

V.  McDonald 

640 

Maclaren  i'.  Stainton 

72 

McLaren  v.  Stainton 

545,  556  n 

McLarrcn  i'.  IJrewer 

127 

128 

Maciar}-  v.  Kezner 

ITS 

McLaughlin  v.  Detroit 

545 

V.  Fulton 

133 

828 

McLaurie  v.  Parthlow 

82,84 

McLaurin  v.  Fairly 

75 

832 

840 

Maclay  v.  Love 

662 

676 

685 

McLean  v.  Wade 

715 

748 

McLearn  v.  McLellan 

232 

McLernore  v.  Good 

541, 

556 

McLennan  v.  Sullivan 

120 

^L'lcleod  V.  Annesley 

457 

McLeod  V.  Hullard 

171 

V.  Drummond    225,  809 

810, 

811, 

814, 
815 

V.  Evans 

122, 

828 

V.  First  National  Bank 

828, 

836 

McLoud  V.  Burchall 

502 

V.  IJdberts 

032 

McLoutli  ('.  Hunt 

465, 

545 

McMahill  V.  McMahill 

613 

Mc^Lilion  V.  Featherstonhaugh 

828 

r.  Harrison 

292 

Mc^Ieukin  r.  Edmonds 

594 

Mc.Millun  !'.  Deerinfj 

253 

Mi-Monai;Ie  v.  Mc(jlinn 

801 

McMullen  V.  Heatty 

304 

V.  O'Reilly 

810 

V.  Scott 

918 

McMurrav  v.  jrontgomery 

416 

418, 

421 

McMurry  v.  Mnbley 

200 

IMacnab  v.  Wliitbread 

112 

McN'air  v.  Pope 

171 

McNair's  Appeal 

225 

421 

McNamara  v.  Garrity 

120 

V.  Jones 

910 

IStcNeil  V.  McDonald 

539 

McNeilage  v.  HoIIoway 

640 

M.  Xeill  V.  McNeill  248 

McNuille  V.  Acton       60,  225,  454,  800,  810 

McNeilledf,'e  v.  Galbrath  251,  255 

McNish  V.  Guerard  299,  305,  310 

Macomb  v.  Kearney  766 

Macon,  itc.  Railway  v.  Parker  675 

Macpherson  v.  Macplierson  550 

Mcpherson  v.  Cox  276 

V.  Rollins  104 

V.  Snowdon  357,  366,  371,  374 

McQueen  v.  Farquhar  511  a,  769,  830 

V.  Lilly  508 

V.  Meade  350 

McRaeny  v.  Johnson  330 

McRarey  v.  Huff  215 

McRee  v.  Means  112,  380 

McKcinnKjn  r.  Martin  239 

McKoljiTts  r.  Carneal  246,  869 

V.  iMoudy  733 

McTif,'lu;  V.  Dean  827 

McVey  V.  Boj,'gs  636 

McWhorter  v.  Agnew  498 

V.  Benson  919 

V.  Wright  586 

McWillianiH  v.  Nisby  68 

Macy  v.  Williams  225 

Maddeford  v.  Austwick  178,  210 

Maddison  v.  Andrew  139, 144,  251,  507, 

510 

Maddocks  v.  Wren  243 

Maddox  V.  Allen  858 

V.  Maddox  512,  515,  555 

V.  Staine  379 

Mades  i'.  Miller  910 

Madox  V.  Jackson  250,  878 

Maennel  v.  Murdock  590,  591 

Maliit  r.  Hvnd  86 

Magdalen  Ccdlege  v.  Att.-Gen.        737,  866 

Magdalena  Steam  Nav.  Co.,  Vn  re  754 

Magee  r.  Carpenter  602  d 

V.  Cowperthwaite  918 

Magccs,  In  re.  603 

Magill  V.  Brown          46,  696,  699,  700,  701, 

704,  715,  721,  730,  748 

Maginn  v.  Green  917 

Magruder  r.  Peter  232,  238,  601 

Maguiac  v.  Thompson  184 

Maguire  v.  Scully  360,  361 

Magwood  V.  Johnston  661 

Mahan  v.  Mahan  109,  111 

Mahar  v.  O'llara  576 

Mahlor  v.  Lees  226 

Mahon  v.  Savage  255,  256,  699 

V.  Stanhope  539,  777 

Mahony  i'.  Hunler  202 

Mahorner  v.  Harrison  126 

Mais,  In  re  275 

Mail  land  r.  Backhouse  201 

V.  Bateman  440 

V.  Irving  201 

r.  Wilson  219 

Major  t'.  Herndon  93 

V.  Lansley  647,  656 

V.  Sommes  680,  685 

Makepeace  t'.  Rogers  803 

Malcolm  v.  O'Callaghan  613,  514,  517,  910 

Matins,  In  re  774 

V.  l?arker  112 

V.  Keighley  112,  116 


INDEX   TO   CASES   CITED. 
[References  are  to  eections.] 


Mai  ins  V.  Malin  38,  82,  137, 189,  227 

Mallabar  v.  Mallabar  150,  151,  900 


Mallalieu  v.  Hodgson 

212 

Mallet  V.  Smith 

499 

Mallory  v.  Mallory 

127 

Malone  v.  Geraghty 

845,  878 

V.  O'Connor 

112 

Maloney  v.  Kennedy 

664,  608 

V.  Kernan 

217 

V.  L' Estrange 

229,  230 

V.  Tilton 

163 

Maltby's  Case 

179 

Malzy  V.  Edge 

261,  267 

Man  V.  Warner 

559 

Manahan  v.  Gibbons 

416 

Manby  v.  Bewicke 

803 

Manchester  v.  Bonhatn 

903  rt 

V.  Manchester 

328 

V.  Mathewson 

855 

V.  Sahler 

680 

Manchester  Royal  Infirmary, 

In  re        453 

Manchester  School  Case 

725 

Manderson's  Appeal 

815  6 

Mandeville  v.  Solomon 

211 

Manes  r.  Durant 

213 

Mangles  v.  Dixon 

438,  831 

Manhattan  Bank  v.  Walker 

122 

Manice  v.  Manice 

305 

Manion  v.  Titsworth 

641 

,  863,  865 

Manly  v.  Slason        232,  233 

236 

237,  239 

Mann  v.  Ballott 

733 

V.  Betterly 

187,  189 

V.  Darlington 

212 

V.  Ricketts 

863 

Mannen  v.  Bradberry 

843 

Manners  v.  Furze 

818 

Manning  v.  Albee 

173 

V.  Cox 

330,  520 

V.  Manning        429,  462, 

464, 

468,  900, 
916 

V.  Pippen 

226 

V.  Spooner 

563 

V.  Thesiger 

881,  885 

V.  Wopp 

118 

Mannings  v.  Randolph 

556 

Mannix  v.  Purcell 

142 

,  169,  477 

Mannsell  v.  Hedges 

208 

V.  Mansell        217, 241,  344,  509  b,  784, 

828,  844 

Mansell  v.  Vaughn 

414 

,  491,  505 

Manser  r.  Dix 

768 

Mansfield  v.  Danieron 

237 

V.  Mansfield 

602  h,  672 

V.  McGinness 

866 

V.  Shaw 

816,  818 

Mansfield's  Case 

189 

Manson  v.  Bailie 

401,  432 

Mant  V.  Leith                     458 

,460 

,  467,  655 

Manuf.   &    Mech.   Bank  v. 

Bank  of 

Penn. 

589 

Manufacturers  Nat.  Bank  V. 

Swift          44 

Mapp  V.  Elcock 

152,  157 

Mapps  V.  Sharpe 

199,  602  V 

V.  Tyler 

766 

Mara  v.  Browne 

846 

V.  Manning 

969 

Marbury  v.  Ehlen 

225,814 

March  v.  Berrier 

611 

V.  Eastern  R.  R.  Co. 

554 

March  v.  Head 

633,  636 

V.  Russell 

467, 

846, 

851,  867 

Marcy  v.  Amazeen 

82 

Mare  v.  Sandford 

591 

Mareck  v.  Minneapolis  Trust  Co. 

787 

Marlield  v.  Ross 

602  z 

Margetts  v.  Barringer 

648 

V.  Perks 

418 

Marigny  v.  Remy 

593 

Marine  Fire  Ins.  Co.  v.  Early 

232 

Marker  v.  Marker 

540,  851 

Markle's  Estate 

195 

Mark  1 63'  v.  Singletary 

648 

Marks  v.  Morris 

602  ee 

V.  Semple 

910,  917 

Markwell  v.  Markwell 

104 

Marlborough,  Duke  of.  In  re 

162 

Marlborough  v.  Godolph 

in 

93, 

252,  383, 

507 

508,  714 

V.  St.  John 

477,  552 

Maries  v.  Cooper 

218 

Marlow  v.  Johnson 

602/ 

Maroney  v.  Maronej' 

133 

Marples  v.  Brainbridge 

512,  516 

Marr  v.  Oilman 

351 

V.  Peay 

270 

Marrett  v.  Paske 

428 

Marrick  v.  Grice 

667 

Marriott  v.  Kinnersley 

402,  845 

V.  Marriott 

182 

Marryatt  v.  Marryatt 

280,  826 

V.  Townley         359, 

361, 

364, 

366,  371, 
374 

Marsden's  Estate 

275 

Mavsden's  Trusts,  In  re 

511a 

Marsh,  In  re 

511  c 

V.  Alford 

680 

V.  Att.-Gen. 

724 

V.  Hunter 

469 

V.  Marsh 

562, 

647 

666,  684 

V.  Means 

700, 

724,  726 

V.  Oliver 

863 

V.  Putnam 

72 

V.  Renton 

721,  725 

V.  Turner 

232 

V.  Wells 

536 

V.  Wheeler 

160,  765 

Marshall,  Ex  parte 

337 

Marshall,  Ee 

511c 

V.  Baltimore  &  Ohio  Railway 

214 

V.  Blew 

542 

V.  Bousley 

366 

V.  Brenner 

451 

V.  Carson 

195 

V.  Christmas 

232,  237 

V.  Collett 

184 

V.  Crowther 

551 

V.  Fisk 

299,  302 

V.  Fleming 

137 

V.  Fowler 

633,  636 

V.  Frank 

219 

V.  Gibbings 

C32 

V.  Holloway       169, 

393, 

395, 

619,  906, 
918 

V.  Lovelass 

55 

V.  IMiller 

680 

V.  Sladden  282,  297 

329, 

539 

769,  777 

V.  Stevens 

195, 

655 

661,  782 

Marshall's  Estate 

305 

,  451,  865 

INDEX   TO   CASUS   CITED. 


CI 


Marstellcr's  Appeal 
ISIartelli  v.  Ilolloway 
Martidall  v.  Martin 
Martin,  lie 

V.  Aliter 

V.  Bainl 

V.  UiiKlwin 

t'.  Ucll 

V.  BliL'lit 

V.  Coles 

V.  Fort 

V.  Kraiitz 

V.  Fr\'e 

V.  Funk 

V.  (iraves 

V.  Greer 

V.  Jackson 

V.  Joliffe 


[References  are 

918 
381 

c'j;j 

62'2 
602  c/ 

137 

815  6 

648,  04  y 

172 

243 
299,  055 

803 

502,  503 

97,  'J'J 

107 
127,  83(1 

803 

830 


V.  Margham      388,  396,  399,  709,  7_2i^, 

».  Martin        71,72,142,238,304,427, 
629,  631,  035,  843 

V.  McCord  If} 

V.  Mitchell  \^' 

V.  Morgan  I'O.  \'Jl 

V.  Parnell  °«' 

V.  Kamsey  1  '« 

V.  Kaybora  ^o*'  ^'j'' 

r.  Read  °'3 

D.  Kemington  {^^ 

V.  Sedgwick  438 

V.  Sherman  ^t^ 

«.  Smith  334,  801 

V.  Swaunell  '^|» 

Martin's  Appeal  o^^  "^^^ 

Martindale  v.  Picquot  ^J» 

Martzell  f.  Stauffer  8^;^ 

Marvel  v.  Phillips  »G6 

Marvin  v.  Brooks  ^;^:^ 

Marwood  t'.  Darell  ^OJ- 

Maryland  Ins.  Co.  v.  Dalrymple  199 

Mason,  in  re  ^fj 

V.  liaker  i''5 

V.  Bank  of  Commerce  700,  t'Ji 

V.  Chambers  J*^ 

V.  Crosby  171,  230 

V.  Dry  '^11 

r.  Jones  503,  020 

V.  Limbury  l'" 

V.  Martin  428,  785 

V.  Mason      347,  508,  511,  611,  858,  859 

V.  McNeill  639,  040 

t".  Morgan  640 

V.  Morley  44t, 

V.  Pewabic  M.  Co.  242 

V.  Pomeroy  400 

V.  Uosevelt  ^'° 

V.  Smallwood  299 

V.  Wait  404,  409,  606,  009 

V.  Wheeler  253 

V.  Whitehorn  443,  444 

V.  Williams  l^'-^ 

Mass.  Hosp.  V.  Amory  275,  280 

V.  Fairbanks  607 
Mass.  Soc.  for  Prevention  of  Cruelty  to 

Animals  v.  Boston  712 

Massenburgh  v.  Ash  379,  38'- 

Massett  v.  Pocock  894  I 


to  Bectiouh.] 

Massey  v.  Banner    406,441,  443,  444,  463, 

•^  901,  914 

V.  Davies  206 

V.  Fi»her  44 

V.  Huntington  98,  99 

V.  McUwaiue  217 

r.  ( )'  1  )ull  «''3 
V.  Parker     646,  647,  648,  652,  653,  671 

V.  Sherman  H2 

Massie  v.  Watts  70,  71,  72 

Massy  V.  Stout  276 

Master  r.  DeCroismar  04,304 

V.  Fuller  657,  058 

Masters  r.  Masters  572,  573 

Mastin  r.  Barnard  202 

Mather  r.  Bennett  803 

V.  Norton  796,  801 

V.  Tliomas  338 

Mathers  v.  Prestman  780 

Mathes  v.  Bennett  403 

Mathew  i'.  Hanbury  171 

Mathews  v.  Bliss  178,  ISO 
V.  Brise                        443,  444,  401,  403 

V.  Gutss  639 

V.  Jlevward  458 

V.  Keble  393 

V.  Masters  706 

V.  Mathews  421 

Mathias  v.  Mathiaa  841 

Mathis  V.  Matliis  918 

Mathison  v.  Clarke  431,  432,  904 

Matson  v.  Abbey  856 

Mattex  I'.  Weand  237 

Matthew  r.  Brise  871 

V.  Holman  610 

I'.  Marow  724 

Matthews  v.  Bagshaw  905 

V.  Dellicker  827  a 

V.  Dragand  195,  915 

V.  Leaman  85 

V.  McPherson  328,  329 
V.  Ward    0, 17,  299,  301,  321,  327,  328, 
349,  430,  520 
Matthie  v.  Edwards       602  o,  602  5,  602  ee, 

770,  782 

IMattocks  V.  Moulton  281,  460 

IMattoon  v.  McGrew  145 

Mattox  V.  Eberhart  780 

Maud  V.  Maud  112 

Maul  r.  Keder  210,  223,  851 

r.  Kider  851 

Mauldin  r.  Armstead  264,  343,  602  e,  602  m 

Maundrell  v.  Maundrell  511c 

ISlaundv  v.  Maundy  182 

MaunsL-U  v.  Hedges  208 

Maupin  v.  Delany  6|8 

Maverick,  &c.  Soc.  v.  Lovejoy  243 

Maw  V.  Pierson  246 

Maxwell  r.  Barringer  127,  498,  803 

V.  Finnic  ^'5 

V.  Kennedy  229,  -30 

V.  Pittinger  191 

I'.  Wettenhall  600 

May  I'.  Armstrong  900 

V.  Frazer  404,  500 

V.  Mav  248,  274,  275 

V.  Selbv  884 

f.  Steele  126 

V.  Tavlor  328 


cu 


INDEX  TO   CASES   CITED. 
[References  are  to  sections.] 


Mav's  Heirs  v.  Frazer  "79 

Mayall  v.  Mayall  610,  7G4 

May  berry  v.  Neely  649 

Maj'bury  v.  Briun  323 

Mavcl  V.  Field  652 

Maver  v.  Galluchat  432,  661,  895 

'v.  Gould  848 

17.  Montreon        509,  826,  827,  877,  884 

V.  PuUan  602  e 

V.  Townsend  360 

Mayfield  v.  Clifton  639 

V.  Donovan  275 

V.  Forsyth  79,  84,  166,  8G5 

V.  Kegour  329 

Mayham  v.  Coombs  232,  23G 

Mayhew  v.  Crickett  210 

MaVnard  v.  Cleveland  437  a 

■«.  Tyler  189 

t;.  Williams  676 

Maynel  v.  Massey  581 

Mayor  v.  Davenport  2G0 

V.  Nixon  732 

V.  Williams  223 

Maj'or  of  Coventry  v.  Att.-Gen.        42,  275 

Mayor  of  London's  Case  694,  699 

Mavor  of  Lyons  v.  Advocate-General 

of  Bengal  727 

Maj'or  of  Lyons  v.  East  India  Co.  741 

Mayor  of  South  Melton  v.  Att.-Gen.      745 

Ma3'wood  v.  Lubcock  218 

Mazelin  v.  Rouyer  277 

Mazj-ck  V.  Vanderhost  380 

Meacham  v.  Sternes  596,  918 

Meachey  v.  Young  612 

Mead  v.  Langdon  183 

V.  Merritt  72 

V.  Orrerv    217,  225,  809,  810,  811,  815 

V.  Phillips  591 

Meads  v.  Martin  658 

Meakings  v.  Cromwell  64,  499,  501 

Means  v.  Rosevear  770 

Meason  v.  Kaine  134 

Mebane  v.  Mebane  386  a 

Mechanics'  Bank,  In  re  411,  413,  760 

V.  Der  Bolt  816 

V.  Edwards  347 

V.  Gorman  592 

V.  Seton  242 

Meconkey's  Appeal  511  c 

Medbur}'  v.  Watson  173 

Medecai  v.  Parker  520 

Medland,  In  re  457 

Medley  v.  Davis  232 

V.  Horton  347, 670 

Medlicott  v.  O'Donnell  228,  861 

Medworth  v.  Pope  66 

Meecham  v.  Steetle  305 

Meek  v.  Briggs  827  n 

V.  Kettlewell  98, 100, 101, 102, 105,  111 

Meeker  v.  Puvallup  705,  720 

Meeting  St.  Bapt.  See.  v.  Hail  312,  734, 748 

Megargal  v.  Saul  232 

Megargel  u.  Naglie  310  a,  652 

Meggison  v.  Moore  112,  114,  116 

Meggott  V.  Meggott  871 

Megod's  Case  17 

Mehrtens  v.  Andrews  467,  869 

Meigs  V.  Dimock  232 

V.  Meigs  103 


Meikel  v.  Greene  39 

Meinertzhagen  v.  Davis  55,  286,  297 

Meldon  v.  Devlin  645,  848 

Meldrum  v.  Scorer  873 

Melery  v.  Cooper  238 

Melick  V.  Voorhees  845 

Mellick  V.  Asylum  706 

Melling  v.  Leak  866 

Mellingen  i>.  Bausmann  642 

Mellish  V.  Robertson  184 

Mellish's  Estate  850 

Mellor  V.  Porter  52 

Melone)',  In  re  280 

Memphis  Barrel  Co.  v.  Ward  242 

Mence  v.  Mence  157 

Meudenhall  v.  Leivy  658 

V.  Mower  276  a 

Mendes  v.  Guedella  412,  418,  442 

Mendon  v.  Merrill  98 

Menier  v.  Hooper's  Tel.  Works              242 

Mennard  v.  Welford  275,  284,  292 

Mer.  Man.  Co.  v.  Smith  58G 

Mercantile  Nat.  Bank  v.  Parsons  225 

Mercein  v.  People  672 

Mercer  v.  Hall  517 

V.  Stock  77,  140 

Mercers'  Co.  v.  Att.-Gen.  725 
Merchant  Tailor's  Co.  v.  Att.-Gen.        725 

Merchants'  Bank,  In  re  275,  280 

Merchants'  Nat.  Bank  v.  Haverhill 

Iron  Works  790 

Merchants'  Ins.  Co.  v.  Abbott  790 

Meredith  v.  Heneage  112, 113, 115, 116, 153 

Merest  v.  James  13,  347 

Merket  v.  Smith  127 

Merino  v.  Munoz  127 

Merkel's  Estate  462 

Merlin  v.  Blagrave         385,  476  a,  922,  928 

Merriam  v.  Harsen  667 

V.  Hassam  860,  864 

Merrick's  Estate  462,  463,  468 

Merrill  v.  Fowle  602  s 

V.  Moore  918 

V.  Neill  599 

V.  Peaslee  95 

V.  Smith  127 

V.  Swift  593 

Merriott  r.  Givens  602 .9.9 

Merritt  v.  Farmers'  Ins.  Co.            336,  337 

V.  Jenkins  918  n 

V.  Lambert  202 

V.  Lvon  6G4 

V.  M'erritt  448,  455 

V.  Wells  232,  239 

V.  Wilson  599 

Merriweather  v.  Booker  633 

Merrv  v.  Abney  277 

v.  Rvves  517,  519 

Mersey  Docks,  &c.  v,  Gibbs  744,  914 

Mershon  v.  Duer  324 

Mervin,  In  re  382 

Meserole  v.  Meserole  398 

Mesgrett  v.  Mesgrett  511,  517,  518,  519 

Messena  v.  Carr  547 

Messenger  v.  Clark  664 

V.  Gloucester  694 

Messingbred,  Re  457 

Mestaer  v.  Gillespie  181 

MetcaU  v.  Cook  655,  661 


INDEX   TO   CASES   CITED. 
[References  are  to  aectioiu.] 


cm 


Motcalf  r.  FraminRham  Parish  451 

Metcalfe  i'.  Ilutciiinsou  581 

Metford  Schdol  l.jfi 

Median  v.  Devon  8G,  'J3 

Methodist  Church  v.  Jaques     655,  fifiO,  Gt;5 
V.  Kemniiiigtou   40,  715,  724,  728,  7.11. 

748 
V.  Stpwart  41. 'J 

V.  Warren  748 

Methodiift  Soc.  of  Georgetown  r.  Ben- 
nett 
Met  hold  V.  Turner 

Metropolitau  Nat.  Bank  v.  Campbell  C 
Co. 


518 
C15 


V.  Ropers 
Men  re  v.  Men  re 
Meux  r.  Bell 

V.  Howell 

I'.  Maltby 
Mews  V.  Mews 
Meyer  r.  llolie 

I'.  Sinionson 
Meyer's  Appeal 
Michael  v.  Baker 

r.  Jones 
Michael's  Trusts,  In  re 
Michell  I'.  Michell 


828 

147 

366,  371,  372 

105 

590 

71,  72,  885 

604 

131 

457,  458,  551 

918 

32 

437  a 

671 

671 


Michigan  State  Bank  v.  Gardner  243 

Michoud  V.  Girod     195,  197,  205,  207,  229, 
230,  745,  855 
Middaugh  v.  Fox  805 

Middlebrook  v.  Merchants'  Bank  331 

Middleton  v.  Clithrow  701 

V.  Dodswell  484,818,  819 

V.  Middleton  169,  181,  183 

V.  Keav  293 

V.  SpiJer  61,  327,  427,  437,  701 

Midland  Counties  Railw.  Co.  r.  West- 
combe  494 
Midland  Great  Western  Railw.  v.  John- 


son 

184 

Midlcott  V.  O'Donel 

855 

Midnier  r.  Midmer 

138 

Miggett's  Appeal 

195 

Mikel  V.  Mikel 

914 

Miibank  r.  Collier 

885 

Mildniay  r.  Mildmay 

220 

Miles  !'.  Baoon 

596. 

891,  910 

V.  Durnford 

225,809,810,  811 

V.  Ervin 

202 

V.  Fisher 

320 

V.  Knight 

765 

V.  Leigh 

569 

V.  Neave 

270 

I'.  Thome 

800 

V.  Wheeler 

205,  805 

Miles's  Will,  /n  re 

4.55 

Millions  t».  Dunham 

458,  814 

Jlillar  «>.  Craig 

923 

Millard  v.  Eyre 

275,  282. 

283,  293 

V.  Hathawny 

126. 

137,  803 

Millard's  Case 

219, 

521,  828 

Milledge  v.  Lamar 

546 

Millen  V.  Giierrard 

547 

Miller  t'.  Atkinson 

700 

720,  748 

V.  Antle 

215 

V.  Argyle 

602  ee 

V.  Baker 

145,  803 

V.  Beverleys  324, 464, 468,  910,  912,  918 


Miller  t».  Bingham 

V.  Blose 

V.  Brown 

r.  (Jhittenden 

V.  CAark 

V.  Congdon 

V.  Conklin 

V.  Cotton 

V.  Cramer 

V.  Davis 

V.  Evans 

r.  Fenton 

V.  Franciscus 

V.  Ciable 

V.  Harwell 

V.  Hiiie 

V.  Hull  602  <, 

V.  Knight 

V.  Lerch 

V.  Macomb 

I'.  Mclntire 

V.  Meetch  248, 

V.  Miller 

r.  Morrison 

V.  Pearce 

V.  Porter  697, 

V.  Priddon 

V.  Proctor 

V.  Race 

V.  Hosenberger 

V.  Rowan 

V.  Rutland,  &c.  Railway 

V.  Scamnion 

V.  Sharp 

r.  Stanley 

I'.  Stokely 

V.  Stump 

t'.  Texas  &  Pac.  Ry.  Co. 

V.  Thatcher 

V.  Welles 

V.  Wetherby 

V.  Whittier 

V.  W'illiams 

V.  Williamson 
V.  W^ilson 
Miller's  Case 

Estate  606, 

Millet  V.  Rowse 
Milligan  v.  Mitchell 

I'.  Pleasants 
Milliken  v.  Ham 
Milling  V.  Leak 
Millinger  v.  Bausman 
Mills  V.  Argall 

r.  Banks  578, 

t".  Britton 
V.  Davison 
V.  Dugmore 

V.  Farmer   156,  693,  705. 
724, 
I'.  Hoffman 
V.  Hurd 

r.  Mills  428,440,451,455 
V.  Newbury 
V.  Osborne 
V.  Post 
V.  Robarts 
r.  Swearingen 
t'.  Tavlor 


646,  6.52.  653 
133,  141,  143 
080 
384,  748 
82 
263,  574 
592 
226 
920 
165,  612 
774,  779 
879 
230 
733,  734,  748 
562,  573 
685 
602  w,  602  aa 
282 
42,  45 
380 
228,  855 
262,  308,  499 
547,  672 
863 
181 
715,731,  748 
284,  806,  808 
441,  458,  927 
837 
351 
705,  712 
757 
167 
82 
638 
137 
324 
610 
75 
178 
685 
911 
664 
655, 660,  810 
162 
17 
609,  639,  918 
6.36 
7.34,  816 
457,  472 
126 
860 
676 
599 
581,  597,  768 
545 
384 
773 
708,714.719. 
725,  729,  739 
452 
166 
,  467,  547, 848 
732 
438,  453 
828 
616 
828 
783 


CIV 


Millspaugh  v.  Putnam 
Miliiio's  Succession 
Milner  v.  Culmer 

V.  Freeman 

V.  Ilyland 

V.  liucker 

V.  Stanford 

V.  Turner 
Milner's  Settlement,  Re 
Milnes  v.  Slater 
Milroy  v.  Lord 
Milsington  v.  Mulgrave 
Mimms  v.  Delk 
Minis  I'.  Chandler 

V.  Mackliri 
Minchin  v.  Minchin 

V.  Nance 
Mines  v.  Lockett 

V.  Mason,  &c.  R.  R. 
Minet  v.  Hvde 


INDEX    TO   CASES   CITED. 
[References  are  to  sections.] 


98 

44;j 

C.53 

126,  147 

828 

206 

147 

35 

671 

563 

96,  100,  J  02 

508,  532,  534 

490 

133 

299 

76 

122 

232,  237 

232,  237 

630 


V.  Vulliamy 

741 

Minneapolis  Trust  Co.  v 

Menage 

453 

Minor  v.  Wicksteed 

569 

Minot  V.  Amory 

551 

V.  Boston  Asylum 

730 

V.  Mitchell 

135, 

172,  215 

V.  Paine 

545 

V.  Prescott 

783,  785 

V.  Thompson 

547 

Minton  v.  Pickens 

828 

Minturn  v.  Seymour 

97 

,  98,  367 

Minuse  v.  Cox           462, 

568,  780, 

782,  894 

Mirehouse  v.  Seaife 

569, 

570,  573 

Missionary  Society 

730,  748 

Mitchell,  'lie 

875 

tJ.  Adams 

264 

V.  Beal 

590 

V.  Bower 

584 

V.  Bunch 

72 

V.  Colburn 

437  a,  539 

V.  Colglazier 

127 

V.  Corbett 

769 

V.  Gates 

647 

i;.  Gazzam 

586 

V.  Holmes 

918 

V.  Kingman 

35 

V.  Mitchell 

578, 

584,  684 

V.  Murphy 

920 

V.  Nixon 

291 

V.  O'Neil 

137 

V.  Otej' 

677 

V.  Pitner 

282 

V.  Rice 

262 

V.  Sevier 

628 

V.  Stiles 

590 

t'.  Thomson 

869 

V.  Whitlock 

437  fl 

V.  Winslow 

68 

Mitchell's  Estate 

560 

Mitchelson  v.  Piper 

474 

Mitchum  v.  Mitchum 

205 

Mitford  V.  Mitford 

239,  633 

635,  641 

V.  Reynolds     41,  47.  61,  697,  704,  706, 
712,  720,  741 

Mittenberger  v.  Schlegel  576 

Mix  V.  King  181 

Mobile,  &c.  Railway  v.  Tolman  754,  757 

Mobile  Life  Ins.  Co",  v.  Randall  828 

Mocatta  v.  Murgatroyd  347 


Moddewell  v.  Keever 
Modrell  v.  Riddle 
Mollatt  v.  Bingham 
V.  McDonald 
V.  McDowall 
V.  Tuttle 
Mogg  V.  Hodges 
Mogg  v.  Mogg 
Moggeridge  v.  Grey 


599 

137 

864 

127,  836 

585 

815  6 

57 

385,  390 

275 


V.  Thackwell 

Mohn  V.  Mohn 
Mohun  V.  Mohun 
Moir  V.  Brown 
Moke  V.  Norrie 
Mole  V.  Mole 

V.  Smith 
Mollan  V.  Griffith 
Molony,  In  re 

V.  Kenned}' 

V.  Kernan 
Molton  V.  Camroux 

V.  Morton 
Molum  V.  Molum 
Molyneux  v.  Fletcher 
Monahan  v.  Gibbons 
Monday  v.  Vance 
Monelfw.  Monell 


156,  690,  693,  705,  714, 
719,  722,  724,  729,  739 
86 
747 
273 
59,  297 
616 
347 
562,  573 
901 
626 
206,  219 
189 
684 
891,  894.  896 
145 
421 
104 
416,  419,  421 
Money  v.  Herrick  75,  132,  133,  137,  181 
MoneA'penny  v.  Bristow  871 

i.  Dering  376,  385,  390 

Monk  V.  Mawdesley  511  c 

Monks  V.  Monks    "  903  a 

Monro  v.  Allaire  195,  199 

Monroe  v.  James  262 

Monroe  Cattle  Co.  v.  Becker  127 

Montacute  v.  Maxwell  226 

Montagu,  Jn  re  603 

V.  Pacific  Bank  122 

Montague  v.  Dawes  199,  495,  602  w,  602  x, 

602  fjg 

V.  Gamett  843 

V.  Haves  82 

Montefiore,  jEx  parte  836 

V.  Behrens  630 

V.  Browne  784 

Montesquieu  v.  Sandvs  188,  202 

Montford  v.  Cadogan       260,  261,  467,  532, 

534,  847,  848.  849,  877 

Montgomery  v.  Agricultural  Bank         661 

V.  Bath  873,  882 

V.  Beavan  929 

V.  Commercial  Bank  588 

V.  Dorion  55 

V.  Eveleigh  661 

V.  Hobson  230 

17.  Johnson  261 

V.  McElroy  569 

V.  McEwen  602  77 

V.  Milliken  .500 

Montgomery's  Appeal  91 8  n 

Montpelier  v.  F>.  Montpelier  275 

Montpelier  Seminary  y.  Smith's  Estate 

729 
Moodv,  In  re  618 

v.  Fan-  328 

V.  Fulmer  500,  518 

V.  C-jv  72 

V.  Vandyke  195,  205,  500 


INDEX    TO   CASES    CITED. 
[Beferencea  are  to  sectiona.] 


CV 


Moody  &  M.  Co.  I' 

Trustees 

467 

M00U8  r.  De  bernales 

464,  H47 

Moor's  Appeal 

'J24 

Moorcroft  r.  Dowd 

Dg 

82,  400 

Moore,  In  re 

512 

V.  Hlack 

871 

V.  Blake 

877 

V.  IJrackin 

203 

I'.  IJurnet 

17 

328,  5-20 

V.  liiirrows 

231 

V.  (  aiiipbell 

171 

V.  Clay 

219 

V.  ("k-giiorn 

357 

I'.  Crawford 

147,  1G9 

V.  Crofton 

107 

108,  109 

V.  Darton 

87 

V.  Diinond 

254,  511  b 

V.  Ellis 

673 

V.  Eure 

443 

V.  Erowd 

432, 

894, 

895,  004 

V.  Green 

135 

V.  llalcombe 

233,  239 

V.  llamerstag 

127,  171 

V.  IlaiiiiltoQ 

453 

V.  Harris 

653 

r.  Henderson 

880 

V.  Hilton 

205 

V.  Horsley 

79, 

131,  212 

V.  Hus.sey 

48 

V.  Jackson 

349 

r.  Jones 

640 

r.  I^ampkin 

815  6 

I'.  Loekett 

706 

V.  McGlynn 

4GG 

V.  Moore        97,  133, 137,  145,  381,  600, 

627,  629,   632,  665,  670,  671,  721, 

724,  728,  731,  748,  931 

V.  Morris  647,  6(;8 

V.  Trance  900 

r.  Kavmond  238 

I'.  liead  191 

r.  Robbins  448 

V.  Scarborough  665 

V.  Sheppard  863 

V.  Shultz  298,  310,  498 

V.  Simonson  477 

V.  Smith  929 

V.  Stinson  310 

r.  Tandv  421 

r.  Thornton  633 

r.  Vinten  878 

V.  Waco  358 

7'.  Zabriskie  918 

Mnorhead's  Estate  520 

Mnorliniise  V.  Calvin  208 

Moorman  f.  Arthur  147 

('.  Crockett  279 

IMoors  <•.  Wyman  918  n 

I\Iora  r.  Manning  849 

Moraii  r.  Moran  171,  715 

!".  Somes  79 

Moravian  Soc,  In  re  284 

Mordecai  v.  Parker  17,  328 

r.  Schirmer  499 

Morden  »•.  Chase  299 

More  r.  Roimett  21 

r.  Calkins  260,  767,  910 

V.  Freeman  672 

V.  May  how  219,  220,  221 ' 


!  Morehead  v.  Brown  918 

Moreland  r.  Brown  122 

.Moreton  i'.  Harrison  232,  234,  238 

Morey  r.  Herrick  133,  181,  215 
Morftew  v.  Sau  Francisco,  &c.  li.  Co.   254, 

312 

Morgan,  Kx parte  209,  336,  337,  870 

Morgan,  In  re  378 

V.  VAdxn  661 

r.  Halford  227 

V.  lianuas  918 

V.  lliggins  20 

V.  Honians  432 

V.  Malison  96,  97,  101 

V.  Morgan  324,  397,  450,  451,  547, 

551,584,  871 

V.  Otey  456 

V.  Rogers  299 

f.  Stephens  907 

V.  Thomas  358 

Moriarty  r.  Martin  112,  254 

Morice  v.  Durham     116,  150,  157,  159,  507, 

697,703,711,712 

Morison  v.  Morison  907,  910 

Morley,  In  re  348 

v'.  Bird  136 

V.  Hawke  840 

V.  Loughman  189 

V.  Morley  347,  441,  914 

r.  Iteniioldson  515 

Morley 's  Trusts  337 

Mornington  v.  Keane  122 

V.  Selbv  183 

Morony  v.  Vincent  892 

Morrel'l  r.  Dickey  891 

Mt)rret  i-.  Paske  206,  430,  431 

Morrill  r.  Lawson  878,  881 

Morriman's  Trusts  633 

Morris  r.  Burroughs  201 

V.  Clare  131 

V.  Hanson  143 

V.  Joseph  206 

V.  Kent  272 

V.  McCulloch  214 

V.  Morris  162,  540,  610.  771 

V.  Mowatt  562 

V.  Nixon  206,  226 

V.  Preston  290 

V.  Remington  72 

V.  Thompson  748 

V.  Wallace  456,  459 

V.  Way  44,  602  t 

Aforris's  Appeal  600 

]\Iorris  Canal  ;•.  F.mmet  174 

]Vrorrissey  r.  Mulhern  658 

Morrison,  In  re  623 

V.  Bean  602  77 

V.  Reirer  731,  7'4'8 

I'.  Kellv  296 

V.  Konstra  447,  463 

V.  McLeod  189,  191 

V.  Moat  67 

V.  Morrison  432 

V.  Thomas  202 

Morrow  v.  IVvton  426 

Morse  r.  Crofoot  600 

r.  Hill  195,  229 

r.  Mason  680 

V.  Morse  82 


CVl 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Morse  v.  Royal  195,  197,  209,  228,  428,  801, 

809 

Mortimer  v.  Ireland  294,  340,  494,  495 

V.  Moffatt  541 

V.  ricton  455 

V.  Shortall  226 

V.  Watts  508,  5;i2 

Mortiinore  v.  Mortimore  400 

Mortlock  V.  Buller     109,  176,  498,  507,  539, 

770,  775,  777,  779,  781,  784,  787 

Morton,  In  re  494 

V.  Adams  458,  910 

V.  Barrett  305,  891,  894,  910 

V.  Naylor  08 

V.  Southgate  511 

V.  Tewart  82,  83 

Morton  and  Hallett,  In  re  339 

Morville  v.  Fowler  412,  701 

Mory  V.  Michael  32,  511  c 

Mosby  V.  Steele  37 

Moseiev  v.  Eastern  R.  R.  Co.  550 

V.  Marshal  329,  539,  540,  547 

V.  Moseley  249,  257 

Mosely  v.  Garrett  232 

Mosely  &  Eley  r.  Norman  815  6 

Moser  r.  Lebenguth  184 

Moses  V.  Levi  419,  422,  423 

V.  Murgatroyd      98,  343,  414,  593,  594, 

602/;  891 

Moshier  v.  Knox  College  246  a 

Mosley  v.  Ward  900 

Moss  V.  Bainbridge  202 

V.  McCall  647 

Moss's  Appeal  547 

Moth  V.  Atwood  183,  187,  188 

Mott  V.  Buxton  305 

V.  Clark  218,  222 

V.  Harrington  202 

Moulton  V.  De  M'Carty  614 

V.  Halev  143,  676 

Mounce  v.  Byars  232,  239 

Mountford,  Ex  parte  613,  617 

V.  Scott  222 

Mouslev  V.  Carr  468,  901 

Movan  'v.  Hays  76,  79,  105,  226 

Mower  v.  Hanford  590 

Moyle  V.  Movie  259,  417,  443,  462,  563 

Moyse  V.  Gyles  136 

Mozingo  V.  Ross  °63 

Mucholland  r.  Belfast  770 

Muckenfoss  v.  Heath  918 

Muckleston  v.  Brown    84,  90,  93,  151, 160, 

165,  216 

V.  Tuller  262,  416,  419,  438,  440 

Mudge  V.  Brown  672 

Muffett,  In  re  548 

Muggeridge's  Trusts  388,  555 

Muir  B.  Cross  232 

V.  Schenck  438 

V.  Trustees  182 

Mulcahy  v.  Kennedy  801 

Miildrow  V.  Fox  499 

Mulforrl  V.  Shurk  591 

V.  Winch  205 

Mulhallen  i'.  Marum  200,  229,  230 

Mulholland  ?'.  York  1"1 

Mullen  V.  Bowman  152 

V.  Dovle  428 

V.  McKim  137 


Muller,  In  re  468 

Mulligan  v.  Mitchell  745 

Mullins  V.  Mullins  79 

Mulrein  v.  SmiUie  477 

Mulry  V.  Mulry  277 

Mulvanev  v.  Dillon  196 

Mumford  v.  Murray         418,  419,  463,  408, 

594,  026,  032,  (;45 

Mumma  v.  Mumraa  54,  143,  146 

V.  Potomac  Co.  242 

Mumper's  Appeal  891 

Munch  V.  Cockerell  404,  417,  454,  403, 

407,  847,  851,  875,  878,  881,  923 

Munden  v.  Bailey  815  a 

Mundine  v.  Pitts  218 

Mundy  v.  Howe  612 

V.  Mundy  871 

V.  Vattier  598,  602^ 

Munnerlyn  v.  Augusta  S.  Bank      122,  443 


Munro  v.  Collins 

128 

Munson  i'.  S.  G.  &  C.  R 

R.  Co. 

129 

Muntorff  v.  MuntorfE 

891 

Murdoch  v.  Finney 

438 

V.  Hughes 

863,  805 

Murdoch's  Case 

199 

Murdock  v.  Bridges 

712 

V.  Johnson 

783 

Murless  v.  F>anklin 

126, 

143, 

145,  146, 
147 

Murphey  v.  Cook 

351 

Murjjh}-,  In  re 

555 

V.  Abraham 

555 

V.  Bell 

590 

V.  Bright 

685 

V.  Carlin 

114 

V.  Dallam 

748 

V.  Doyle 

460 

V.  Grice 

626 

V.  Hubert 

75 

V.  Moore 

330 

V.  Nathans 

144 

V.  Peabody 

126, 139 

V.  Whitney 

^82 

Murphy's  Estate 

720 

Murray  v.  Able 

238 

V.  Addenbrook 

380,  381 

V.  Ballou 

217,  221 

V.  Barlee 

657 

658 

002,  003 

V.  Blatchford 

425 

V.  Cosier 

228 

V.  Dehon 

503 

i\  De  Rottenham 

915 

V.  Elibank 

626, 

627, 

630,  645 

V.  Feinour 

459 

405 

406,  407 

V.  Glass                 82 

454, 

544, 

545,  551 

V.  Green 

671 

V.  Lylburn 

836,  842 

V.  Murphy 

182 

V.  Murray 

122 

r.  Palmer 

171, 

187,  230 

V.  Pinkett 

835 

V.  Sell 

126 

V.  Vanderbilt 

199,  207 

Murrell  v.  Cox 

416, 

421 

423,  809 

Murthwaite  v.  Jenkenson 

305,  308 

Muscogee  Lumber  Co.  v 

Hyer 

918  w 

Muse  V.  Sawyer 

203 

Musham  v.  Mushara 

127 

Muskerry  v.  Chinnery 

530 

INDEX   TO   CASES   CITED. 
[References  are  to  sectiona.] 


cvu 


Musselman  i'.  Eshelman 

20.5 

Mus.sey  v.  Mussey 

8o;j 

V.  Noves 

5'JO 

Mussoiirie  Bank  v.  Raynor 

114 

Musters  V.  Wright 

C-20 

Mut.  Ace.  Ass'ii  V.  Jiicobs 

82cS 

Mutual  Life  Ins.  Co.  r.  Armstrong 

181 

V.  Everett 

248 

I'.  Woods 

2tJ4 

Myatt  c.  St.  Helen's,  &c.  Railw. 

-hi) 

Myercoiii^h,  Ex  parte 

017 

Myers,  lit                                          454 

408 

V.  Board  of  Education 

828 

V.  .lack son                           137,  162 

2U'J 

V.  McHride 

Ulc 

V.  Mvers          70,  84,  89,  139,  471, 

012, 

627 

910 

V.  Perigal 

80 

V.  Trustees  of  Schools 

275 

V.  Wade 

618 

V.  Zelelle 

450 

Myers's  Appeal                                   200 

918 

Myetsky  v.  (joery 

685 

Myler  v.  Fitzpatrick                         240, 

907 

N. 


Nab  V.  Nab 
Nace  V.  Hoyer 
Naj;!e  i'.  Hayler 
Na^jle's  Estate 
Naj^lee  v.  Iiij^ersoll 
Nail  r.  I'unter 
Nairn  r.  Majoribanks 

V.  I'rowse 
Naklred  v.  Uilham 
Nance  v.  Coxe 

V.  Nance 
Nanney  v.  Martin 

V.  Williams 
Nantes  r.  ( "orrock 
Naiitz  V.  Mcl'lieraon 
Napier  r.  Howard 

V.  Napier 
Narron  j'.  Wilmington  &  W.  R.  Co 
Nash  r.  Alien 

r.  Coates 


82,  84,  85,  80,  90 
194 
191 

297,  506,  709 

005 

407,  849 

477,552,  9i;5 
2.i0 
103 
541 

122,  457,  400 

039 

18],  182 

189,  002,  003 

219 

627,  632,  030.  045 

020,  032,  030 
765 
310 
312 


Nasln 


V.  Minnesota  Title  Co. 

V.  Morely 

V.  Nash 

V.  Ober 

V.  I'reston 

V.  Spofford 


i; 


699,  711,  712 
640 
560 
322 
240  a 


ille  Trust  Co.  v.  Lannon        145,  Ui2 
V.  Sinythe  238 

Nathans  r.  ^[orrls  918 

National  Bank,  &c.  v.  Lake  Shore.  &c. 

K.  K.  Co.  242 

V.  Ellicott  122 

r.  .Smith  7<J0 

National,  i^^ic.  Building  Society,  In  re     453 
National  Exch.  Co.  r.  Drew  "  172 

National  Revere  Bank  v.  Morse  7it0 

National  Webster  H'k  v.  Eldridge  284 

Naiimiin  r.  Weidman  700 

Naiindorf  r.  Sclmmann  511  f 

Naylor  v.  Arnitt  305,  307,  329,  484, 

528 


Naylor  v.  Godman 

V.  Wyiich 
Nazareth,  &c.  t;.  Lowe 
Neal  V.  Black 
V.  Bleckley 
t'.  Maxwell 
Neale,  In  re 
V.  Davies 
V.  Ilaythrop 
V.  Neale 
Neally  v.  Ambrose 
Nearpass  v.  Newman 
Nebraska  Nat.  Bank  v.  Johnson 
Nedby  v.  Nedby 
Needfiam,  In  re 
Needler's  Case 
Needles  v.  Martin 
I'.  Needles 
t'.  Winchester 
Neel  V.  McElkeimy 
Neeley  v.  Anderson 
Neely  v.  Steele 
Neeson  v.  Clarkson 
Xeeves  v.  Burrage 
Neff's  Appeal 
Negroes  v.  Palmer 
Neil  V.  Kinney 
Neill  I'.  Keese 
Neilson  v.  Blight 
V.  Cook 
V.  Lagow 
Neiinawicz  r.  Gahn 
Nelson  v.  Bridport 
V.  Callow 
V.  Cornwall 
I'.  Davis 
V.  Duncombe 
V.  Hagerstown  Bank 
V.  Lee 

V.  jMcDonald 
V.  f)ldfield 
r.  Rat  I  iff 
V.  Seaman 
V.  Stocker 
V.  Worrall 
Nesbitt  V.  Berridge 
t'.  Tredennick 
V.  Turner 
Nestiiith,  In  re 
Ness  V.  Davidson 
Nestal  V.  Schmidt 
Nester  v.  Gross 
Nettle's  Charity,  In  re 
Nettleship  v.  Nettleship 
Nettleson  r.  Stei)hensou 
Neustadt  v.  .Joel 
Nevarre  v.  Rutton 
Neves  v.  Scott 


185 


Nevil  V.  Saunders 
Nevill  V.  Nevill 
Neville  r.  Fortescue 

t'.  Thacker 

V.  Wilkinson 
Nevin,  In  re 
Nevift  r.  Gibson 
New  r.  Bonaker 

V.   Hunting 

V.  Jones 


.378 
llt9 
2.J9 
104 
612,  800 
932 
613 
433 
126 
185 
590 
104 
181,  837 
607 
259 
849 
748 
188,  039 
48 
864 
206 
783 
231 
474 
438,  441,  914,  927 
114 
232,  239 
81,  127,  138 
98,  .593 
914 
62,  64,  312,  320 
554,  007 
72,  74 
506 
803 
299,  305,  312,  357 
915 
468,  809 
010 
658 
182 
104 
878 
930 
1.37 
183 
129,  196,  538 
658 
910 
448 
135 
207 
735 
665 
395,  397 
596 
863 
359,  301,  367. 
370 
305.  310 
119 
451,  406 
358 
171 
603 
171 
47,  741 
593 
904 


CVIU 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


New  V.  Nichol  526 

New  Eughuul  Tr.  Co.  v.  Eaton  547 

Newark  Meth.  Episc.  Cli.  v.  Clark        38G, 

748 
Newberg,  &c.  Co.  v.  Miller  701 

Newberry  r.  Blatcbford  732 

Newbery,  In  re  ^^(3 

Newburgli  v.  Bickerstafie  87] 

Newcastle  v.  Lincoln  364,  373 

Newconibe  v.  Keteltas  528 

V.  St.  Peter's  Church  748 

V.  Williams  263,  272,  426,  5J4 

Newcomen  v.  Hassard  058 

Newdigate  v.  Newdigate  540 

Newels  v,  Morgan  126,  14'J 

Newen,  In  re  289,  329 

New  England  Bank  v.  Lewis  593,  594 

New  England  M.  S.  Co.  i'.  Buice  253 

New  England  Theosophical  Corp.  v. 

Boston  712 

Newhall,  Ex  parte  37 

V.  Wheeler  299,  312,  843 

Newill  V.  Newill  380 

Newlaiid  v.  Att'y-Gen.  704 

V.  Champion  225 

Newlands  v.  Faynter  647,  648,  653 

Nevvlin  v.  Freeman  655,  660 

Newman  v.  Barton  244 

V.  Early  143,  229 

V.  Jackson      602 i,  602  q,  602  r,  602  <,a, 

762,  782 

V.  James  648 

V.  Johnson  569 

V.  Jones  849 

V.  Meek  188 

V.  Montgomery  330 

V.  Favne  202,  203 

V.  Warner  273,  503 

V.  Williams  574 

New  Market  v.  Smart  748 

Newmeyer's  Appeal  733 

New  Orleans  v.  McDonogh  748 

Newport  V.  Brvan  260 

V.  Cook     "  615,  616 

Newsome  v.  Flowers  433,  803 

Newson  v.  Buffalow  226 

V.  Thornton  243 

New  South  B.  Co.  v.  Gann  103 

New  Statehouse,  In  re  41 

Newstead  v.  Searles  222,  367 

Newton,  In  re  603 

V.  Askew  104,  111,  821 

V.  Bennett  464,  468,  501,  901,  902 

V.  Bronson  71,  402,  409, 779 

V.  Egmont  885 

V.  Hunt  188 

1!.  Marsden  514 

V.  Metropolitan  R.  Co.  812 

V.  Pelham  84 

V.  Forter  128,  135,  211 

V.  Preston  137 

V.  Reid  652 

V.  Swazey  84,  231 

New  York,  &c.  v.  Stillman  334 

New  York  Ins.  Co.  v.  Elv  44 

V.  Roulet  ■  843 

New  York  Life  Ins.  Co.,  In  re  545 

1'.  Baker  453 

V.  Kane  453,  467 


New  York  Life  Ins.  Co.  v.  Sands  453 
New  York  Security  Co.  v.  Saratoga 

Gas  Co.  279 

Nevland  v.  Bendv  137,  816  a 

Niblack  v.  Park  Nat.  Bank  87 

Nice's  Appeal  652 

Nicholls,  In  the  Goods  of  929 

V.  Nicholls  192 

V.  Peak  598,  794 

Nichols  V.  Allen  711 

V.  Baxter  602 «; 

V.  Campbell  204,  343 

V.  Eaton  386  «,  388 

V.  Emerv  79,  104 

V.  Hodges  918 

V.  Lew  386  a 

V.  McEwen  590,  918 

V.  Nichols  122 

V.  Palmer  672 

V.  Postlethwaite  570 

V.  Rogers  276 

Nichols,  Appellant  467,  863 

Nicholson  v.  Faulkiner  888 

V.  Field  290 

V.  Halsev  347 

V.  Leavitt  586,  590,  591 

V.  Tutin  593 

Nickell  V.  Handler  305,  386  a,  652 

Nickels  v.  Philips  276 

Nickerson  v.  Buck  891 

Nickolls  V.  Gould  188 

Nickols  V.  Thornton  126 

Nickolson  V.  Knowles  246 

Nicoll  V.  Miller  259 

V.  Mumford  593,  594 

V.  Ogden  259 

V.  Walworth  17,  312,  318,  328 

Nicolson  V.  Wordsworth  270,  271, 273, 

503 

Niell  V.  Morley  35 

Nightingale  v.  Burrell  380 

V.  Goulbourn  41,  47,  61,  704,  720 

V.  Harris  592 

r.  Hidden  299,  324,  647 

V.  Lawson  533 

V.  Lockman  639 

V.  Nightingale  104 

Niles,  Re  848 

V.  Stevens  402,  499 

Nimmo  v.  Davis  188 

Nims  V.  Bigelow  684 

Niolon  V.  Doufflas  585,  592 

V.  McDonald  910 

Nisbett  V.  Murray  903  a 

Niver  v.  Crane  126,  133 

Nix  V.  Bradley  646,  650,  655 

Nixon  r.  Rose  647,  660 

Nixon's  Ap[.eal  126,  133,  137 

Noad  V.  Backhouse  818 

Noble  r.  Andrews  317,  357,  358,  841 

V.  Rrett  9;!2 

V.  Edwards  780 

V.  McFarland  676 

V.  Meyinott  267,  291,  884 

V.  Morris  82 

Noble's  Estate  462 

Nobles  t'.  Hogg  453 

Noe  V.  Koll  143,  145 

Noel  V.  Bewley  349,  351,  355 


INDEX    TO   CASES   CITED. 
[References  are  to  sectioun.] 


Noel  V.  Henley 

550,  571 

V.  Juvoll 

322 

V.  Jones 

lllJ 

r.  Kobinson 

244 

Noke  V.  Stp])iiig3 

820.  827 

Nolc'ii's  Appeal 

6;i9,  042 

Noiiotuck  Silk  Co.  V.  Flanders        122,827 

Norbury  r.  Calbeck 

WM 

V.  Norbury 

4.07.  (i04 

Norcuin  v.  D'Oench 

511,784 

Norfolk's  Case 

7.17 

Norliiij;  t'.  Allee 

246,  4:}7  '. 

Norman  r.  Cunningham 

84;},  844,  847 

r.  Hill 

002 /y,  002  '/a 

Norris  r.  Chambers 

71 

V.  Clynier 

610 

V.  Frazer 

181 

V.  Ilaggin 

802 

V.  Harrison 

544.  54.J 

V.  Hassler 

875 

V.  He 

223 

t>.  Johnston 

555 

V.  I^  Neve 

206,  228,  869 

V.  Norris 

8!J4,  807 

V.  Thompson       694, 

711 

,  720,  765,  920 

V.  Woods 

511  b 

V.  WriKht 

457,  4C0,  889 

Norris's  Appeal        229, 

464, 

470,  471,901, 
918 

North  V.  Barnum 

803 

V.  Crompton 

150,  151 

c.  Curtis 

609 

V.  Pardon 

354 

V.  I'hilhrook 

320 

V.  Turner 

5!)3 

North  Adams  Univ.  Soc 

V. 

Fitch          705, 

Nostrand  i'.  Atwood 
Nottage,  In  re 
Nottigc  V.  Prince 
Nottingham  v.  Jennings 
Nougues  V.  Xcwlands 
Nourse  v.  Finch 

t'.  Merriam 
Nowland  r.  Nelligan 
Noyes  r.  Hlakeman 

t'.  Newburyport  S.  Inst'n 

V.  TumbuU 
Nugent  r.  Oiflcjrd 

r.  Vetzera 
Numsen  r.  Lyon 
Nunn  V.  Graham 

V.  Harvev 

V.  O'Urien 

V.  VViismore 
Nurse  r.  Yerwarth 
Nurton  v.  Nurton 
Nutt  V.  Morse 
Nyce's  Appeal 

Estate 
Nyssen  v.  Gretton 


CIX 


592 

384.  705 

189,  ]!»2 

380 

865 

150 

738,  748 

112 

660,  680 

82 

343 

809,  810,  811.  815 

603 

299 

680 

618 

114,  540 

600 

347 

809 

82.  171 

418,  453,450,467 

459,  914 

570 


O. 

Oakes  v.  Strachay  117,  449 

Oakland  Bank  of  Savings  v.  Wilcox       209 
Oakley,  Jn  re  428 

Oates  V.Cooke  312,313,314 


Northage,  In  re 

North  Anier.  Coal  Co.  v.  Dvett 


Oat  man  v.  Barney 
O'Baniion  r.  Musselman 

5!)3    O'Bcar  Jewelry  Co.  v.  Volfer 
705,     Obee  v.  Bisliop 

748    Obermiller  r.  Wylie 

545    Obert  v.  Bordine' 

554    Oberthier  r.  Strand 


North  Australian  Territory  Co.,  In  re    207  i  O'Brien  v.  Grierson 


North    Baltimore,   &c.  Ass.   v.    Cald 

well 
North  British  Ins.  Co.  v.  Llovd 
North  Carolina  R.  R.  Co.  v.  NVilson 
No.  Car.  School  v.  No.  Car.  Inst'n 
Nortliainpton  Bank  v.  Ballitt 

r.  Crafts 

V.  Whiting 
North  Hempstead  v.  Hempstead 
Northcroft  r.  Martin 
Northen  v.  Carnetrie 
Northern     Central     K.     R.     Co.     r. 

Keigliton 
Northrop  v.  Hale 
North  Shore  Ferry  Co. 
Norton  v.  Dyersburg 

V.  Frpcker 


195 
179 
853 
700 
438 


172 
152 


V.  Gillisou 

V.  Ladd 

V.  Leonard 

t>.  McDevit 

V.  Norton 

V.  Ray 

V.  Turvill 
Norton's  Estate 
Norvell  r.  Johnson 
Norway  r.  Norway 
Norway  S.  Bank  v.  Merriam 
Norwich  Yarn  Co. 


918 

82 

3:!1 

749 

871 

918 

863 

299,  302.  305 

863,  8ii5 

312 

843 

657,663,  668,  8  I'i 

471 


V.  Lewi 
r.  McMeel 
t'.  Petitioner 
O'Cain  i-.  O'Cain 
O'Callaglian  r.  Cooper 
Ocean  Nat.  Bank  r.  Alcott 
873  I  Ochiltree  r.  Wright 
299    Ockeston  r.  Heap 
43  '  O'Connell  v.  O'Callaghan 
O'Connor  v.  Decker 
r.  Haslam 
V.  Spaight 


346 

511 

242 

860 

126 

17,  328 

126 

928 

202 

729 

99 

401 

517,  518,  901 

142 

415,  417.  421 

340,  494,  495 

890 

443 

601 

871 


270,  271,  8:i8 

82,  16.1 

907 


Odd  Fellows  Hall  Ass'n  v.  McAllister 

4.37  « 
Oddie  V.  Brown  306,  397 

Odell  V.  Odell  384,  399,  687, 


Udell's  Estate 
Odcn  V.  Windlfv 
O'Donnell  r.  White 
Oeshiger  r.  Fischer 
O'Farrall,  Kx parte 
O'Ferrall  r.  O'Ferrall 
Offley  r.  Ollley 
Ogden  V.  Astor 

V.  Kip 

V.  Larabee 

t'.  ]\IiHugh 

r.  Murray 


24,  737, 

r;i8,  748 

477,  490 

918 

126 

458 

632 

533 

581 

178 

819 

82 

122 

207,  918 


ex 

Ogdeu  V.  Ogden 
Ogden's  Appeal 
Oglander  v.  Oglander 
O'Hara,  In  re 

V.  Dudley 

V.  O'Neiil 
O'Herlihy  v.  Hedges 
O'Herron  v.  Gray 
Oke  V.  Heatli 
Okedeii  v.  Okeden 
O'  Keefe  v.  Caltliorpe 
O' Kelly  «.  Glenny 
O'Kinson  v.  Patterson 
Olcott  V.  Gabert 

V.  Tioga  R.  R.  Co. 

V.  Byiium 
Oldham  v.  Hand 

V.  Jones 

V.  Litchfield 
Old's  Estate 
Oliphant  v.  Burns 

V.  Hendrie 

V.  Liversidge 
Olive  V.  Dougherty 

V.  Westerman 
Oliver,  Re 

V.  Courts 

V.  Ins.  Co. 

V.  Oliver 

V.  Piatt 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


850 
305,  310  a,  652 

277,  287 
276 
171 
82,  135, 137 
427 
845 
160 
581 
277,  283,  284 
862 
299 
315 
199 
132 
202 
206 

181,  226 
917 
223 
741 
145 
137 
458 
308 
210,  419,  770 
186 

226,  451 

127,  217,  836,  842,  843,  844, 

863 


Olliffe  V.  Wells  687 

Olmstead,  In  re  280 

V.  Herrick  590 

V.  Webb  189 

Olney  v.  Balch  288 

O'Loughlin  v.  Fitzgerald  347 

Olson  V.  Lamb  202 

Ommanny  v.  Butcher  253,  712,  748 

Oneal  i\  Mead  564 

O'Neall  t'.  Herbert  425 

O'Neil  v.  Greenwood  103 

V.  Hamilton  215 

V.  Vanderburg  782 

O'Neill  V.  Donnell  918 

V.  Henderson  216 

V.  Lucas  381,  397 

Onslow  V.  Corrie  536 

V.  Londesborough  786 

V.  Wallis  157,  327,  734 

Ontario  Bank  v.  Mumford  58 

Opinion  of  Justices 

Oppenheimer  v.  First  Nat.  Bank 

Orange  v.  Pickford 

Orb  j;.  Coapstick 

Orbey  v.  Mohun 

Orcutt  V.  Gould 

Ord  V.  Noel           409,  602  ee,  770,  774,  779, 

781,  787 

V.  White  831 

O'Reilly  V.  Alderson        275,  284,  292,  297 

Orford  v.  Churchill  903  a 

Orleans  v.  Chatham  82 

Orlebar  v.  Fletcher  231 

Ormiston  v.  Olcott  452 

Ormond  v.  Hutchinson  178,  185,  803 

Ormrod's  Settled  Estate,  In  re  90.J  a 

Ormsby,  In  re  904,  910 

V.  Dumesnil  251 


757 
82 
511c 
166 
530 
828 


Ormsby  v.  Tarascon       602  a,  602  p,  602  q, 

783 

V.  Webb  189 

O'Rorke  v.  Bolingbroke  183 

O'Rourke  v.  Beard  79,  260,  315 

Orr  V.  Hodgson  55 

V.  Newton  261,  440 

V.  Kode  790 

Orrett  v.  Corser  440 

Orrock  v.  Binney  812 

Orth  V.  Orth  114,  245 

Orthwein  v.  Thomas  66 

Osborn,  In  re  422 

V.  Brown  513 

V.  Glasscock  223 

V.  Morgan  627,  633 

Osborne  v.  Fuller  591 

V.  Gordon  277 

, V.  280,  282 

to  Rowlett  339,  494 

Osburn  v.  Tallows  873 

V.  Throckmorton  647 

Bliss  288 

i;.  Eaton  133 

V.  Franklin  187,  308,  770 

V.  Lovering  371 

V.  Strode  367 

Osmond  v.  Fitzroy  189,  851 

Osterman  v.  Baldwin  65,  75,  131 

Oswald's  Appeal  468 

Oswell  V.  Probert  626,  632,  633 

Otis  V.  Beckwith  105 

V.  McLellaa  381 

V.  Sill  86 

Ottley  V.  Gibbs  821 

V.  Grav  792 

Otto  V.  Sch'lapkahl  863 

Ottway  V.  Wing  654 

Ould  V.  Washington  Hospital  694 

Ouseley  v.  Anstruther  458,  469 

Outcalt  V.  Van  Winkle  641 

Cutwater  v.  Berry  602  v 

Overbagh  v.  Petrie  537 

Overseers  v.  Tayloe  699 

Overseers    of    Ecclesalt   Bierlow,   Ex 

parte  737 

Overseers  of  Poor  v.  Bank  of  Virginia   128 

Overstreet  v.  Bates  803 

Overton  v.  Bannister  53,  624,  923,  930 

Ovey,  Re  727 

Oviatt  V.  Hopkins  920 

Owen  V.  Aprice  871 

V.  Arvis  592 

V.  Bryant  66 

V.  Delamere  454 

r.  Dickenson  658 

V.  Homan  178,  179,  657 

V.  Owen  284 

V.  Peebles  462,  468 

V.  Reed  831 

V.  Switzer  511  c 

V.  Williams  196 

Owens  V.  Cowan's  heirs  500 

V.  Crow  520 

V.  Mission  Society  748 

V.  Owens  181 

V.  Walker  614 

Owing  V.  Mason  218 

Owing's  Case  35,  570,  57« 


INDEX   TO   CASES   CITED. 

CXI 

[Refereucea  are  to  sectionB.] 

Ownes  V.  Ownes          33 

66, 

82,  95.  9fi,  98, 

Palmer  v.  Carlisle 

873 

162 

165,  21-t 

V.  Davig 

683 

Owson  V.  Cown 

172 

V.  Forbes 

759 

Owthwaite,  In  re 

453 

V.  Holford 

380,  395 

Oxeiiileii  V.  Compton 

605,611 

c.  Jones 

847 

V.  Oxendcn 

634,  6;i7 

V.  Mitchell 

464 

Oxford  V-  Kfid 

071 

V.  Scott 

846 

I',  liicliaidson 

871 

t'.  Simmons 

112,  113 

Oxley,  £x  parte 

388,  555 

V.  I'nion  Bank 
V.  Wake  ford 
f.  Wilkins 

705 
880 
3.34 

P. 

t'.  Williams 
V.  Yarborough 

221.  7»8 
602/ 

Pace  V.  Pace 

386  a 

V.  Young 

196,  538 

r.  Pavnc 

863 

Palmes  v.  Dan  by 

611 

r.  i'iuroe 

3;J0 

Palmetto  Co.  r.'ltisley 

127,  207 

Pacific  Nat'l  B'k  v.  Windram 

585,  815  ((, 

Paiinell  v.  Hurley 

246 

813,  907 

827  a 

Pannill  v.  Coles 

321 

Pack  V.  Slianklin 

7U5 

Papillon  V.  Voice 

359,  309 

Packard  c.  Kiiit;maa 

437  a 

Paramore  v.  (jreenslade 

122 

V.  iMar^liall 

315,  160 

Parclier  v.  Daniel 

511c 

V.  0.  C.  K.  Co. 

82 

Pardoe  v.  Price 

751 

V.  Putnam 

82 

Parliti  I'.  Ilember 

376 

383,  390 

V.  Roberts 

633 

Paris  V.  Paris 

543,  545 

Packer  v.  Packer 

630 

Parish's  Appeal 

078 

V.  W'viidhain 

633 

Parish  of  .>t.  Dunstan  v. 

Beauchamp     095 

Packwooii  V.  Maddison 

899 

I'arkam  v.  McCrary 

230 

Paddock  i".  Adams 

145 

Parke  v.  Kleeber 

680 

1'.  Strobridi^e 

179 

Parke's  Charity,  In  re 

737 

Paddon  r.  Richardson 

267 

417 

440,  454 

Parker,  Kx  parte 

236 

Padlield  V.  Padlield 

98 

V.  Barlow 

437  a 

Paff  I'.  Kinuey 

855,  803 

V.  Bloxam 

429 

Page,  In  re 

801 

V.  Bod  lev 

75 

V.  Adam 

597, 

795, 

801,  802 

V.  Bolton 

112 

V.  Bennett 

455 

V.  Brast 

127 

V.  Booth 

229,  230 

I'.  Brooke           538, 

647, 

648, 

665,  83.3. 

V.  Boyntoa 

915 

834 

V.  Broom 

585 

593.  780 

V.  Brown 

724 

V.  Cooper 
V.  Kstes 

708 

f.  Cal croft 

242 

627,  032 

r.  Carter 

324 

V.  Holeman 

471 

r.  Converse        284, 

320 

653 

671,  921 

V.  r.oapingwell 
V.  Lever 

160,  574 

V.  Coop 

127,  133 

219 

V.  Crittenden 

219 

221,  222 

V.  Olcott 

590 

V.  Fearnley 

570,  571 

V.  Page                126, 

133, 

137, 

139,  143 

r.  Gillian 

225 

V.  Stevens 

330 

V.  Hall 

858 

V.  Trufaiit 

072 

r.  Johnson 

547,912 

V.  Way 

386  b,  555 

V.  .Tones  Adm'r 

828 

Paget,  In  re 

503 

V.  Kane 

680 

Pahhuan  v.  Shumway 

602  bb.  602  f 

V.  Kelly 

330 

Paioe  r.  Canterbury 

150 

699 

719,  722 

V.  Logan 

137 

Paige  V.  Paige 
V.  Smith 

127 
702 

V.  May 
V.  Nichols 

723,  748 
299 

Paillon  V   Martin 

195 

i".  Parker 

145 

Paine  r.  Barnes 

708 

V.  Sears 

499 

V.  Forsaith 

315 

V.  Seeley 

490,  549 

V.  Hall 

210 

r.  Seweil 

237 

f.  Irwin 

199 

V.  Snvder 

1.37 

V.  Miller 

122 

V.  Wiiite 

199,  521 

J).  \Yilcox 

137 

Parker's  Trusts,  /n  re 

200 

Painter,  lix  pnrle 

58 

Parker's  Will,  In  re 

848 

V.  Henderson 

195 

Parkes  r.  White             646, 

665. 

667,  669. 

Pairo  V.  Vickory 

195 

670 

849,  809 

Paisley  v.  Holzshu 

44S 

Pnrkhurst  v.  Van  Cortlandt 

226 

I'aisley's  Appeal 

117,  119 

Parkinson  v.  Hanbury 

109 

Paker  i'.  Simonds 

6S0 

Parkinson's  Trust 

113 

Paliiiret  r.  Carew 

770 

Parkist  r.  Alexander 

206 

Palk.  Re 

343,  848 

Parkman  ;-.  SutTolk  S.  Bank 

225 

Palmer  t>.  Bate 

69 

Parks  V.  Hall 

226 

cxu 


INDEX  TO  CASES   CITED. 
[References  are  to  sections.] 


Parks  V.  Parks 

r.  Satterthwaite 
I'anneiiler  v.  Walker 
Pariiilee  v.  Sloan 
Pariiell  v.  Hiugston 

V.  Lyon 
Pariiliain  v.  Ilurst 
PariL-tt  v.  Palmer 
Pariis  I'.  Cobb 
Parrish  r.  I'arrish 

V.  Kliodes 
Parrott  v.  J'almer 

V.  Pawlett 

V.  Sweetland 

V.  Trub}' 
Parrv  v.  Warrington 

V.  Wright 
Parshall's  Appeal 
Parson  v.  Snook 
Parsons  i'.  Baker 

V.  Bovd 

V.  ClaVk 

V.  Dunne 

V.  1 1  ay  ward 

V.  Jones 

V.  Jury 

V.  Lyman 

r.  Parsons 

V.  I'helan 

V.  Winslow 
Partee  v.  Thomas 
Partington  v.  Pteynolds 
Partridge  v.  Havens 

V.  Slesser 

17.  Pav.-lett 

c.  Stocker 

V.  Walker 
Paschall  v.  Acklin 

V.  Hinderer 
Pascoag  Bank  v.  Hunt 
Pascoe  V.  Swan 
Passingham  r.  Sherborne 
Patapsco  Guano  Co.  v.  Brj-an 
Patching  v.  Baruett 
Patten  r.  Bond 

V.  Herring 
Pattenden  v.  Hobson 
Patrick,  Re 
Patterson  v.  Devlia 

V.  Flanagan 

V.  High 

V.  Johnson 

V.  Linder 

V.  Mills 

V.  Murphy 

V.  Scott 

V.  Wilson 
Patterson's  Appeal 
Pattisun  V.  Hawksworth 
Patton  V.  Chamberlaiu 

V.  Moore 

V.  Randall 

t'.  Thompson 
Paul  V.  Chouteau 

V-  Coinpton 

V.  Fulton 

V.  Heweston 

V.  Squibb 

V.  Wilkins 


2'J8,  30G 

86.5 

602  r,  G02  w 

J  37 

100,  101,  102 

513,  bll 
34.5 
6.58 
863 
189 
149 
871 

694,  724 

235,  230 

900 

462,  508,  550 

347 

209,  427 
385 
112 
330,  414,  602  m 
596 
630 
430 
275 
218 

262,  281 

629,  639,  641 

127 

458,  516,  552,  817 


81)0 

126,  343 

212,  591 

136 

660 

693 

694,  737,  748 

146,  229 

128,  135 

871,  872 

277,  297 

206 

382 

345,  828 

827  n 

771,  890 

438 

541,  546,  547 

681 

546 

260 

232 

86,  347 

82,  86,96,  104 

569,  573 

253 

82,  195 

866 

82 

220,  221 

501 

428 

126 

112.  116 

82,  221 

5116 

205 

231 


Paules  V.  Dilley 

Paulet  V.   Delavel 

Paulus  V.   Latta 

I'auly  V.  State  Loan  &  T.  Co. 

I'aup  V.  Mingo 

I'avey  v.  American  Ins.  Co. 

I'awcey  v.  Bowen 

Pawlett  V.  Att.  Gen.  40 

V.  Clark 
Paxton  V.  Bond 

V.  Potts 
Payne,  Ex  parte 

V.  Atterbury 

V.  Ballard 

V.  Collier 

V.  Comptoa 

V.  Little 

V.  Low 

V.  Parker 

V.  Rogers 

V.  Sale 
Payne's  Case 
Payton  v.  Almy 
Peabody  v.  Eastern  Meth.  See. 

V.  Tarbell 
Peachnian  v.  Daw 
Peacock  i;.  Black 

V.  Evans 

V.  Monk  654,  655, 

V.  Pembroke 

V.  Tompkins 
Peacock's  Trusts,  In  re 
Peak  V.  Ellicott 
Peake,  J^x  parte 

V.  Ledger 

V.  Penlington 
Pearce  v.  Bryant  Coal  Co. 

V.  Crutchfield 

V.  Gamble 

V.  Gardner  499, 

V.  Loman 

V.  McClenaghan 

V.  Newlyn 

V.  Olnev 

V.  Pearce  265,  274, 

V.  Slocoinbe  597, 

Peard  v.  Kekewich 
Pearle  v.  McDowell 
Pearly  v.  Smith 
Pearse  v.  Baron 

V.  Green 

V.  Hewitt 
Pearson  v.  Amicnble  Office 

V.  Bank  of  England 

V.  Belchier 

V.  Benson 

V.  Crosby 

V.  East 

V.  Jamison  402, 

V.  Morgan 

V.  Pearson 

V.  Pullev 

V.  Rock  hill  585, 

V.  Yv'artman 
Pease  v.  Pattinson 

V.  Pilot  Knob  Co. 
Peat  V.  Crane 
Peatfield  v.  Benn 


275 

679 

828 

910 

94 

70 

529 

217,  325 

743 

511  n 

569,  570 

112,  116 
231 
803 

460,  884 
828 

665,  894 
613 
876 
330 

312,  317 

694 

93 

730 

126,  137 
827 
228 

187,  188 

656,  657, 
665 

640,  642 
591 
337 
122 

236,  239 
884 

375,  767 
482 
636 
197 

771,  783 
515 
312 

230,  828 
72 

288,  846 

599,  000 
376 
35 
556 
528 
821 
877 
101 
242 
869 
202 
592 

135,  172 

408,  779 
171 

79,  903  a 

85.5,  862 

591,  594 

568 

727 

511  c 

455 

293,  297 


imjex  to  cases  cited. 

[Kefereucea  are  to  sections.] 


cxm 


Peav  r.  Pcav 

324 

Penstred  r.  Payer 

701 

I'eciiL-1  1-.  Kowler                532 

,  77C 

,  782,  8IG 

I'enlland  t'.  Stokea 

621,  858 

Peck  1'.  Hrowii 

521 

Peniz  f.  Simonson 

685 

V.  Ileiidershott 

678 

People  I'.  Abbott 

437  a 

V.  Pi'ck 

602  ee 

V.  Buffalo 

8Jl 

f.  Walton 

676 

f.  Chicago  Gas  Trust  Co 

21 

V.  Whiting 

591 

V.  Clark 

732 

Peckhani  v.  Newton 

452,  453 

V.  Cogswell 

700,  701 

f,  Taylor 

86,  11(0 

V.  Honohoe 

277 

Peebles  v.  Reading          134, 

135. 

137,  141, 

V.  Everest 

855 

172 

,  217,  2_'8 

V.  Fitch 

701 

People's  Ajipcal 

202 

V.  Iloughtaling 

245 

I'eek  ('.  Henderson 

765 

V.  .lansen 

210 

Peer  v.  IVer 

147,  148 

r.  Kendall 

170 

Peercv  v.  Koberts 

386,  555 

r.  Merchants'  Bank 

195 

Peers  v.  Ceeley 

910,  927 

V.  Morton 

341 

PeilTer  v.  Lytle 

137 

V-  Moores 

33 

Peillow  r.  ({rooking 

671 

r.  North  River  Sugar  Kef.  Co.          21 

Peirce  r.  McKeehau 

137 

V.  North  San   Francisco 

Ilome- 

Peirsol  V.  Koop 

252 

stead  Ass 

732 

Pelhuni  V.  Anderson 

699 

V.  Norton 

275 

Pell  V.  Ball 

900 

V.  0.  B.  of  S.  B.  B.  Co. 

195 

V.  Cole 

681 

V.  Powers                     79, 

712,  720,  729 

V.  De  Winton 

476 

792,  806 

V.  liochester 

44 

V.  Mercer 

723 

V.  Simonson 

732 

Pelley  v.  Bascombe 

863 

V.  Steele 

734,  748 

Pells  ('.  lirown 

379 

I'.   Tebbets 

331 

Pelly  r.  Maddin 

126 

V.  Utica  Ins.  Co. 

44 

Pelton  I'.  Harrison 

671 

t'.  Webster 

49 

Peniber  r.  Kiii!,diton 

701 

Pepper  v.  I'uckey 

277 

r.  M:itliers 

226 

l'epi)crcorn  v.  Waynian 

270,  273 

Pemherton  v.  McGill 

669 

Peraita  v.  Castro 

84 

V.  Marriott 

627 

Percy  v.  Milladon 

207 

V.  Johnson 

686 

Perfect  v.  Lane 

188 

Pembroke  r.  AUenstown 

126 

IVrham  v.  Randolph 

172 

Pence  V.  Force 

86 -i 

Peril!  V.  Cary               45,  697, 

724,  737,  748 

Pendleton  r.  Fay 

225, 

810,  811 

Perine  v.  Swaine 

654 

Pentield  v.  I'uhlic  Adm'r 

98 

Perkins,  Jn  re 

5116 

V.  Skinner 

748 

V.  Boynton 

468 

V.  Sumner 

710 

V.  Caitwell 

855,  863 

V.   ToWLT 

72,  448.  5116 

V.  Cottrell 

676 

Penfold  V.  Bouch 

157, 

520,  900 

V.  Elliott 

660 

V.  Mould 

97 

V.  Fisher 

382 

Penn  v.  Lord  Baltimore       4C 

,  71, 

172,  325 

V.  Kershaw 

910 

Penne  v.  Peacock 

48!) 

r.  Lewis 

262,  281 

Pennell  v.  Deftell 

443 

463,  837 

V.  ^IcGavock 

268,  274 

V.  Home 

869 

V.  Moore 

262,  263 

Pennell's  Appeal 

910,  918 

V.  Nichols 

146,  148 

Penney  v.  Avison 

471 

r.  Perkins 

836 

Pennim:in  v.  Sanderson 

785 

V.  I'ritchard 

752 

Pennington  r.  Beechey 

219 

t'.  Westcoat 

612 

V.  Buckley 

701,  903  a 

Perkins's  Appeal 

432,  918 

V.  Gid<iiMgton 

109 

Perkinson  v.  Hanna 

221 

V.  Smith 

878 

Perrin  v.  Lepper 

877 

Pennock  r.  t'oe 

68,  759 

r.  Lyon 

515 

Pen  nock's  Appeal 

195 

205,  428 

f.  ]\icMicken 

43 

Estate 

113,  119 

Perrine  r.  Applegate 

892 

Pennoyer  v.  Stielden 

7<>5 

1-.  Xewell 

910 

Penn. "Ins.  Co.  v.  Austin 

768,  809 

Perrins  v.  Bellamy 

848 

V.  Bauerle 

242 

Perry,  (ioods  of 

264 

Penny  v.  Allen 

8, 

869,  871 

V.  Boileau 

647 

r.  Cook 

781,  785 

V.  <  'raig 

229,  230 

V.  Davis 

259,  261 

V.  Head 

126 

V.  Pennv 

877 

V.  Knott                      848, 

874,  877,  882 

V.  Turner            248,  251, 

255, 

258,  714 

I'.  Mcl'wen 

733 

Pennypackcr's  Appeal 

471 

V.  McHcnry 

1.32 

Penobscot  U.  K.  Co.  v.  Mayo 

843,  923 

V.  Pearson 

226 

Penrhyn  v.  Hughes 

554 

r.  Perry 

52 

Pensonneau  v.  Bleakley 

218 

V.  Phelips 

841 

VOL.  I.  —  h 

CXIV 


INDEX   TO    CASES    CITED. 
[Eefereuces  are  to  sections.] 


Perry  r.  Roberts  286  b 

V.  Shipway  413 

Perry's  Almshouses,  In  re  701 

Perry  Herrick  v.  Attwood  108 

Perrvclear  v.  Jacobs  628,  fi-i2 

Persch  v.  C^uiggle  128,  20G,  851 

Person  v.  Warren  5(j 

Personeau  v.  Personeau  4(;0 

Persons  v.  Persons  147 

Persse  v.  Persse  185 

Petch  V.  Tutin  ^67 

Peter  v.  Kendall  756 

Peters  v.  Hain  828 

V.  Beverlv  415,  421,499,501,602  ?»,  705 

V.  Goodrich  186 

V.  Grote  6;i7 

V.  Tunell  234 

Petersham  r.  Tash  243 

Peterson  v.  Boswell  127 

V.  Grover  226 

Peterson's  Appeal  499 

Peti.  of  Baptist  Church  476  a,  928 

Petit  V.  Smith  17,  150 

Petit's  Appeal  618 

Peto  I'.  Gardner  605 

Petranek,  Jie  277 

Petre.  /-.c  parte  613,  614 

V.  Espinasse  104 

V.  Petre  614 

Petrie  v.  Clark  225,  809,  812,  814 

Petrikeu  v.  Davis  593 

Pettee  v.  Peppard  440 

Pettibone  v.  Perkins  602  v 

Pettingill  v.  Pettingill  202,  559 

Pettiward  v.  Prescott  872 

Pettus  V.  Atlantic  S.  Ass'n  277 

V.  Clawson  468 

Petty  V.  Booth  648 

V.  Petty  213 

V.  Styward  136 

Peynado't".  Peynado  242 

Peyton  v.  Alcorn  610 

V.  Bury              344,  414,  505,  511,  518, 

519 

V.  Enos  205 

V.  McDowell  891 

V.  Rawlins  191 

V.  Smith  463,  468,  918 

Pfaff  V.  Prag  593 

Phalen  v.  Clarke  230 

Pharis  v.  Leachman  841,  877 

Piiayre  v.  Perce  217, 828 

Pheips,  Ex  parte  275 

V.  Conover  237 

V.  Harris  769 

V.  Phelps  324,  748,  890 

V.  Pond  396 

V.  Seeley  82,  137 

Phene,  Re  929 

V.  Gillon  245,  909 

Phifer  v.  Berrv  869 

Philadflphia,  Matter  of  529 

r.  Fox  710,  743,  748 

V.  Girard      45,  384,  396,  399,  724.  728. 

738,748 

V.  Wills  748 

Philadelphia  Nat.  Bank  v.  Dowd             122 

Piiilanthropic  Sncietv  v.  Kemp                573 

Philbrooke  v.  DelanS  162,  232,  233 


Philippo  V.  Mannings        263,  574,  827,  863 
Philips,  In  re  397 

V.  Brvdges  8,  13,  347 

V.  Crammond        64,  126,  127,  131,  139 
Phillips,  Ex  parte  412,  605,  611 

V.  Bank  of  Lewiston  438 

V.  Belden  229,  230 

V.  Buckingham  883 

V.  Bucks  172,  174 

V.  Bury  742,  743 

V.  Bustard  918 

V.  Cay  ley  511  c 

V.  E^astwood  487 

V.  Edwards  778 

V.  Everard  786 

V.  Garth  250,  257 

V.  Gutteridge  576 

V.  Harrow  700 

V.  Ilessell  630,  632 

V.  James  361 

V.  Medbury  514 

V-  Moore  191 

V.  Mullings  104 

V.  Paget  624 

V.  Phillips  114, 151,  226,  244,  444,  538, 

930 
V.  Rogers  855 

V.  Ross  284 

V.  Sargent  547 

V.  Saunderson  237 

V.  Sherman  77 

V.  South  ParkCom'rs  76,  82 

V.  Swank  315 

V.  Thompson  918 

V.  Ward  328 

V.  Winslow  759 

V.  Wood  252 

Phillips  Academy  v.  King  42.  44 

Phillipson  v.  Gatty         457,  462,  467,  469, 

870,  881 

V.  Kerry  104 

Phillpots  V.  Phillpots  131 

Philpot  V.  Penn  137,  139 

V.  St.  George  Hospital  709 

Phipps  V.  Annesley  571 

V.  Kelynge  381,  390,  396 

Phcenix  V.  Livingston  918 

Phoenix  Bank  v.  Sullivan  593 

Phoenix  Life  Assurance  Co.,  In  re         331 

Phvfe  V.  Wardwell  538 

Piatt  V.  Oliver  127,  206,  881,  882 

V.  Vattier  38,  228,  230,  855,  869 

Pickard  v.  Anderson  453 

Pickets  V.  McPherson  846 

Pickens  v.  Knist'lev  658 

Pickering  r.  C^oates  387,  652,  670 

V.  De  Rochemont  468 

V.  Pickering         185,  4.50,  451,  467,  547 

V.  Shotwell  46,  700,  701.  730,  748 

v.  S'aniford  861,867,869 

V.  Vowles  196,  336,  532,  538 

Pickett  V.  Everett  639 

I".  Jones  672,  673 

V.  Lng-gan  187,  192,  230,  872 

Pickslnck  V.  Lyster  590 

Pickup  V.  Atkinson  451,  547 

Picquet  ^^  Swan  32,  51,  277 

Pidcock  V.  Bishop  171^  178,  179 

Pidgeley  v.  Pidgeley  511 C 


INDEX    TO   CASES   CITED. 
[References  are  to  sections.] 


CXV 


Piedmont  Land  Co.  v.  Piedmont  Foun- 
dry Co.  124 

Pierce  v.  Howker  4C0,  'J  18 

I'.  Hrady  ■I'M 

V.  Brewster  51)0 

V.  IJurrouglis  541,  554 
V.  Emery                            757,  758,  759 

V.  Fort  75 

r.  Gates  239 

»'.  1  lower  147 

V.  McKeehan  836 

V.  Pierce  132 

V.  Robinson  Ct(\2jr 

V.Scott  789,81-2 

V.  Thompson  G'19 

V.  Tlioriiicy  G.t9 

V.  Waring  200 

V.  Weaver  294 

Piercy,  In  re  72,  720 

Pierpoiit  r.  Cheney  614 

V.  Graham       "  592,  59.3 

Pierson  v.  Armstrong  299 
V.  David  232,  238,  239 
V.  Garnet  112,  110,  249 
V.  Shore                              196,  605,  Oil 

V.  Tiiompson  744 

Pieschel  v.  I'aris  714,  729 

Pietv  J'.  Stace  4G4,  408,  900 

Pigott  1'.  Peiirice  248 

Piggott  V.  Green  272 

Pike  i".  Bacon  591 

V.  Baldwin  795 

t'.  Collins  639,  644 

V.  Fitzgibbon  658 

Pilcher  v.  Flinn  230,  861,  807 

V.  Itandall  117 

V.  Kiiwliiis  223 

Pilkiiigton  V.  Bailey  70 

V.  Boughey  112,  160 

Pillars  V.  Mc(;onnell  137 

Pillot  r.  Landon  359 

Pillow  V.  Brown  166 

r.  Shannon  219 

Pillsburv  — Washburn  F.  M 
KistlcT 

Pilniore  r.  Ilood 

Pinchain  t'.  Coliard 

Pine  St.  Soc.  v    Weld 

Pingree  v.  Coffin 
t".  Comstock 

Pingrey  v.  Nat.  Ins.  Co. 

Pingry  v.  Washburn 

Pink  V.  De  Thiiisey 

Pinkard  v.  Pitikard 

Pinkston  v.  Brewster 
i\  Scmple 

Pinn  V.  Downing 

Pinnell  v.  Haileit 

Pinney  v.  Fellows 


232, 


V.  Newton 
Pinnock  v.  Clough 
I'inson  I'.  McGeheo 
Pinston  v.  Ivey 
Pintard  v.  Goodloe 
Pipe  r.  Jordan 
Pipi'r's  Appeal 
Pipkin  V.  Casey 
Pitcairn,  In  re 


Co.    V. 

82 

173 

237 

737 

122 

594 

104 

214 

507,  508,511 

97 

863,  807 

827  a 

418,  419 

475 

79,  82,  126,  127,  132. 

139,  161,647 

246,  405 

81,  133,  135 

82 

863 

239 

223 

275 

814 

348,  450,  506 


Pitcher  v.  Kigby 

V.  Toovey 
Pitney  v.  Bolton 

V.  Flverson 
Pitt  V.  Jackson 

V.  Pitnay 
I'itt's  Case 
Pittnian  t'.  Pittman 
Pitt.i  r.  Bonner 

V.  Cottiiigham 

V.  Kdelph 

V.  James 

V.  Pel  ham 

V.  Pitt 
Pittsiicld  Savings  Rank  v.  Berry 
Planck  V.  Schcriuerhorn  287, 

I'laiiters'  Bank  v.  I'rater 
Plass  V.  Plass 
Platel  V.  Craddock 
Platmone  v.  Staple 
Piatt  V.  McCIure 

I".  New  York  Railway 

V.  St.  John's  College 
Player  v.  Nicholls 
Plomley  v.  l-iichardsoa 
Plowman  v.  Riddle 
PIninan  v.  Slocum 
Pliiml)  f.  I'liiitt 
I'lunibe  r.  Ncild 
PI  nine  i'.  Beale 
Pliimer  v.  Reed 
I'lymouth  v.  Hickman 
Plyniptoii  r.  Boston  Dispensary 

V.  Fuller 

V.  I'lvmpton 
Poage  V.  i$ell 
Pocock  V.  Att.-Gen. 

V.  Reddington    453,  457,  460, 


Podmore  v.  Gunning  82 

Poillon  V.  Martin 
Poiiidextcr  i:  Blackburn 

V.  Burwell 

V.  Jeffries 
Pole  V.  Pictsch 

V.  Pole  54,  143, 

Polk  V.  Boggs 

V.  Robinson 
Pollard,  Kx  parte 

V.  Cleveland 

t'.  Downes 

r.  Doyle 

V.  (^ifecnville 

r.  Maddox 

V.  .Merrill 
Pollard's  Trusts 
Policy  t;.  Jolins(m 
I'olle.xfen  V.  Jloore  38, 

Pollock  r.  Croft 

t".  Ilooley 

V   Keasley 
Pomfret  v.  Perring 

t'.  Winsor        433,  584, 
Pond  r.  Hine 
Ponder  f.  McGruder 
Pontet  r.  Basingstoke  Canal  Co. 
Pool  V.  Bate 

V.  Cuniminga 

V.  Dial 


203 
536 
79 
918 
324 
602  w 

u;r, 

359 

848,  876 

171 

830 

701 

121 

348 

310 

595,  598 

828 

124,  805 

438 

103 

602  ee 

757 

700 

312 

56 

236 

429 

223 

544,  545 

182 

206,  215 

82 

554 

566 

466 

330 

727 

468,  508, 

844,  902 

,181,216 

203,  438 

540,  639 

437  a 

627,  629 

510 

145,  147 

163 

814 

71 

680 

907 

432 

585 

757 

647,  649 

152 

212 

231,  272 

514,  517 

499 

602  dd 

253 

863,  869 

201 

328 

752 

512 

240 

481 


CXVl 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Pool  V.  Harrison 

65,  160 

V.  Lloyd 

167 

V.  Morris 

628 

V.  Phillips 

147 

Poole  I'.  Anderson 

411 

V.  Franks 

820 

V.  Glover 

602/ 

V.  Munday 

407, 

454,  4G7 

V.  Pass                243,  330,  602,  9U1,  910 

Poolev  V.  Quilter  195, 199,  428 

Poor  V.  Hazleton  188,  639,  641 

Poor  of  Clielnisford  v.  Mildmay  742 

Pope  V.  Brandon  602  e 

V.  Burlington  Savings  Bank  82 

V.  Dapray  142,  166 

V.  Durant  602  g 

V.Elliott  386  a,  555 

V.  Farnsworth  848,  851 

V.  Jackson  610 

V.  Pope  113,  114 

V.  Whitconib  250,  255,  257,  258 

Pophain  V.  Bamfield  308 

V.  Brooke  178,  210 

Popkin  V.  Sargent  723 

Poppleton  and  Jones'  Contract,  In  re    593 

Porcher  v.  Reid  655 

V.  Daniel  668 

Pore}'  t".  Juxon  94 

Portarlington  v.  Soulby  71,  72 

Porter  v.  Baddeley  551 

V.  Bank  of  Rutland  86,  242 

V.  Doby  305,  359,  370 

V.  Dubuque  237 

V.  Morris  330 

V.  Powell  612 

V.  Raymond  330 

V.  Tournay  547 

V.  Watts  901 

V.  Williams  590 

V.  Woodruff  195 

Porter's  Case  693,  700 

Porter's  Estate  465 

Portington  v.  Eglington  189 

Portington's  Case,  Lady  94 

Portland  S.  Co.  v.  Dana  122 

V.  Locke  828 

Portlock  V.  Gardner  228,  246,  745,  864. 

865,  907,  923 

Portmore  v.  Morris  226 

V.  Taylor  188 

Portsmouth  v.  Fellows  275,  282 

Posev  V.  Cook  305 

Post'i;.  Rohrbach  382,  736 

Postage  Stamp  Automatic  Delivery  Co., 

In  re  207 

Postell  V.  Postell  380 

Postlethwaite,  Re  197,  861 

Potter  V.  Chapin  748 

V.  Chapman         19,  505,  507,  510,  511, 

V.  Couch  378,671,827  a 

V.  Gardner  598,  794,  795,  800 

V.  Hollister  72 

V.  Jacobs  231 

V.  McDowall  243 

V.  Pearson  205 

V.  Saunders  217 

V.  Thornton  733,  736,  748 

V.  Thurston  724 

Pottle  V.  Lowe  511 6 


Pottow  V.  Fricker  319 

Potts,  Ex  parte                 275,  280,  282,  618 

V.  Potts  372 

V.  Philadelphia  Assoc.  710 

V.  Richards  555 

Pott's  Appeal  652 

Poullain  v.  Poullain  200 

Powell  V.  Att.-Gen.  099 

V.  Brandon  380 

V.  Cleaver  455 

V.  Cobb  194 

V.  Evans                      438,  440,  444,  465 

V.  Glen  312 

V.  Glover  430 

?'.  Hankey  665 

V.  Knox  343,  414 

V.  Merritt  327,  437 

V.  Monson,  &c.,  Blanuf.  Co.    126,  132, 

137 

r.  Murrav  199,  228,  229,  230,  666 

V.  Powell"             126,  133,  468,  900,  918 

V.  Price  361,  362,  828 

V.  Tuttle  409,  411 

V.  Wright  885 

Power  V.  Lester  684 

Powers  V.  Bergen  610 

V.  Bullwiukle  378,  466 

V.  Hale  187 

Powerscourt  i'.  Powerscourt  701,  729 

Powis  r.  Burdett  580 

V.  Corbett  568 

Powlett  V.  Herbert             419,  466,  844,  900 

Powys  V.  Blagrave  477,  540,  552 

V.  Capron  506 

V.  Mansfield  144 

Poythress  v.  Poythress  819 

Pracht  &  Co.  ti.'Lange  437  a 

Prance  v.  Sympson  862 

Prandlev  v.  Fielder  668 

Prankefd  v.  Prankerd  126, 146,  147 

Prather  v.  McDowell  765 

Pratt  V.  Adams  596,  597,  600 

V.  Aver  81 

V.  Barker  190,  204,  210 

V.  Beaupre  158,  814 

V.  Church  117 

V.  Flamer  66 

V.  Jenner  671 

V.  Matthew  66 

V.  Oliver  768 

V.  Philbrook  171,  175 

V.  Pond  167 

V.  Rice  499 

V.  Roman  Cath.  Orphan  Asylum    699, 

730 

V.  Sladden  157,  158 

V.  Thornton  195 

V.  Trustees  114 

V.  Vanwyck  232 

Prav  V.  Hedgeman  398 

'v.  Pierce  299,  302 

Pray's  Appeal  440,  465 

Preachers'  Aid  Soc.  v.  England       300,  312 

V.  Rich  724,  730,  748 

Prendergast  v.  Lushington  4-39 

V.  Prendergast          450,  451,  509,  510, 

511,  547,  548 

Prentiss  v.  Hall  920 

V.  Paisley  658 


INDEX   TO   CASES   CITED. 
[Eeferenceg  are  to  sections.] 


CXVll 


Pre«ant  f.  Goodwin 

ll!t 

Presbyterian  (.'ong.  v.  Johnston 

17,  .-WS 

rrescott  r.  I'itts 

2r,2 

V.  Walker 

:i>> 

t>.  Ward 

84  ;j 

V.  Wright 

171 

Presley  v.  l)avis 

615,  8i;.J 

V.  Strihliiig 

3;{() 

Preston  v.  Casner 

8-2 

V.  (Irand 

885 

I'.  Ilorwitz 

805 

V.  McMillan 

127 

V.  Melville  544,  545 

V.  Tiil.bin  222 

Prevo  r.  Walters  12ii 

Prevost  V.  Clarke  112,  251 

V.  Gratz       82, 197,  205,  228,  5'J6,  745, 

850,863,865,918 

Prewett  v.  Buckingham  8f)-'{ 

t'.  Coopwood  194 

I'.  Laud  602o,  6rtl 

Prey  v.  Stanley  671 

Price,  Kx  parte  480 

V.  Anderson  440,  544,  545 

V.  Uassett  248 

V.  Berriiigton  35,  18i) 

V.  Biakeniore  775,  837,  841,  842 

V.  Hrown  127 

V.  Byrn  228,  229,  869 

V.  Courtney  511  b 

V.  Cutts  918 

V.  Dewhurst  182 

V.  Gibson  348 

V.  Great  Western  Elailway  752 

V.  Hewitt  170 

V.  liuey  766 

V.  Loaiicn  907 

V.  Lovett  69 

V.  Maxwell  697,  700,  730,  748 

V.  Minot  17,  82 

V.  Miilford  863,  865 

I'.  I'hillips  166 

V.  Pickett  556 

V.  Price  98,  100,  108,  219,  223,  568 

V.  Reeves  92 

Price's  Appeal  860,  869.  9!);) 

Prichard  v.  Ames  647,  648 

Priddvr.  Rose  611 

Pride ■».  Fooks         371,  397,  417,  457,  462, 

472,  844,  894,  902 

Prideaux  v.  Lonsdale  104,  194 

Priestley  v.  Ellis  593 

V.  Lamb  636 

Prie^tman  r.  Tindall  848,  876 

Primrose,  In  re  922,  928 

r.  Broinlev  200 

Prince  r.  Ileylin  802 

V.  Mine"  618,  915 

V.  Ladd  281 

V.  Logan  618 

V.  Sisson  299 

Princeton  v.  Adams  733 

Prindie  r.  Holcombe  200 

Pring  V.  Pring  210 

Pringler.  Allen  541 

Printup  r.  I'atton  145 

Prior  r.  Mclntire  805 

r.  Talbot  263,  574 

Prise  V.  Sisson  304,  357 


Pritcliard  r.  Bailey  671 

V.  lirown  137,  165,  2U9 

V.  .luiiitliant  253 

V.  Wallace  127 

Pritcliitt  V.  Nashville  Trust  Co.  545 

Probate  Court  v.  Niles  639 

Proctor  r.  (,'lark  72 

r.  'I'hrall  184 

Proof  V.  iiiiics  192,  2tJ3 

Prop,  of  Brattle  Sq.  Church  v.  Grant    380, 

385 

Prosens  r.  Mclntire  131,  143 

I'rosser  v.  Edmonds  69 

I'roiidfoot  V.  Ilmiie  827 

Proud  ley  r.  Fielder  626 

Providence  Inst'n  i'.  Carpenter  82 

Pro  VI  St  I  if  Edinburgh  v.  Aubrey     735,  741 

I'rvii  V.  Hv me  229 

Pryor  i'.  Hill  632,633 

Puckett  t).  Benjamin  124 

I'ugh,  Kx  parte  636,  657 

r.  Bell  137,195,217 

r.  Currie  127,  136 

V.  Haves  520 

V.  Mifler  106 

V.  Pugh  127,  135 

V,  Vaughan  329 

Puleston  r.  J'uleston  32'J 

Pulitzer  v.  Livingston  382 

Pullen  V.  Ready  184,  513 

Pulpress  V.  African  Church   511,  511  f ,  "20 

Pultenev  v.  Warren  871,  872 

Pulvertoft  r.  I'ulvertoft  98,  100,  108,  307 

I'undmaiin  i\  Schoenich  828 

Purcell  f.  MacNamara  206,  230 

I'urdew  v.  ■Iack.'*on  626,  639,  641 

Punlie  i'.  Whitney  598,  602-7 

Purdom  V.  Pavey  72 

Piinlv  r.  Lvnch  415 

r.  Purdv  132 

Purefroy  v.  "Purefroy  585,  597,  602 

Purycar  r.  Beard  660 

I'.  Purvear  660 

Pusey  V.  Clemson  244,  918 

r.  Desbouvrie  IS 4 

Pushman  v.  Filliter  112,  113.  110 

Pussnell  V.  Landers  002  //" 

Putnam  r.  Gunning  242 

Putnam  Free  School  r.  Fisher         499,  501 

Pvbus  t'.  Smith  306,  655,  667,  670.  847 

Pve,  Ex  parte  90.  98 

V.  George  217,  241,  828 

Pyle,  In  re  448 

Pvni  V.  Blackburn  226 

V.  Lockyer  388 

Pvncent  r.  Pyucent  881 

Pvott's  Estate  449 

Pyron  v.  Mood  263,  303 


Q- 

Quakenboss  r.  Southwick  281 

(,)uackeiibush  r.  Leonard  132.  428,  770 
^»iiarles  i-.  Lacv                   602  o,  002  y,  77 1 

(^larrell  v.  Beckferd  ".115 

guayle  v.  Dwidson  112,  123 

(iucadc's  Trusts,  Re  027 

Queen  v.  Abrahams  17 


CXVUl 


Queen  v.  Commissioners 
V.  Norfolk  Comm'rs 
V.  Orton 

Queen's  College,  In  re 

Queen's  College  Case 

Quick  V.  Miller 

Quigley  v.  Graham 
V.  Gridley 

Quin's  Estate 

Quinc_v  V.  Att.  Gen. 

Quinn's  Estate 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


328 
478 
17 
74.3 
743 
669 
676 
231 
920 
401,  700 
910 


Quinn  v.  Marblehead  Social  Ins.  Co.       98 
V.  Shields  82 

Quirk  V.  Liebert  195 


E. 


Rabb  V.  Flenniken  466 

Kaby  v.  Ridehalgh  457,  467,  848 

Rachfield  v.  Careless  94,  150 

Rackham  v.  Siddall         245,  265,  304,  315, 

337,  846 

Radburn  v.  Jervis  572 

Radcliff  V.  Radford  127 

Radcliffe,  In  re  243,  287 

Radsall  v.  Radsall  162 

Rae  V.  Meek  457 

Rafferty  v.  Mallory  197 

Raffety  v.  King  •               856 

Ragan  v.  Walker  127 

Ragsdale  v.  Kagsdale  245 

Rahn  v.  McElrath  591,  602 

Rahun  v.  Rahun  82 

Rahway  Bank  v.  Brewster  658 

Raiford  v.  Raiford  918 
Raikes  v.  Ward             112,  117,  118,  386  a, 

G20 

Railroad  Co.  (G.  C.  &  S.)  v.  Kelly        207 

Railsback  v.  Williamson  137 

Railton  v.  Matthews  178 

Railway  v.  Barker  810 

Railway  Co.  v.  Ailing  873 

R.  &  S!  R.  R.  Co.  V.  Miller  910 

Rainsford  v.  Rainsford  612,  847 

Rakestraw  v.  Hamilton  232,  238 

Ralphs  V.  Hensler  511  b 

Ralston  v.  Telfair  150, 159,  891,  900 

Ramage  v.  Ramage  12(j 

Ramey  v.  Green  541 

Ramsav  v.  Joyce  213 

V.  'Marsh  298,  299,  301,  306 

Ramsborger  v.  Ingraham  680 

Ramsbottom  v.  Parker  192 

Ramsdall  v.  Craighill  640 

Ramsdell  v.  Edgarton  212,  291 

V.  Sigerson  592 

Ramsden  v.  Hylton  184,  180 

Ramsey  v.  Hanion  448 

V.  Merriam  602  s,  602  v 

V.  Ramsey  166,  918 

Randal  v.  Hearle  112 

V.  Randal  111 

Randall  v.  Bookey  151,  154 

V.  Constans  122,  163,  226 

V.  Errington  195,  851,  867 

V.  Morgan  79,  208 

V.  Pavne  515 

V.  Randall  114 


Randall  v.  Phillips  136,  162 

V.  Rus.sell  538,  547 

Randle  v.  Gould  072 

Randolph  v.  East  Birmingham  Land 

Co.  248, 457 

V.  Inman  891 

V.  Russell  538,  547 

V.  Wendel  380 

Rankin  v.  Bancroft  &  Co.  129 

V.  Duryer  593 

V.  Harper  126 

V.  Lodor  585,  593 

V.  Porter  206 

t'.  Rankin  766 

Ransome  v.  Burgess  612,  615 

Rapalje  v.  Hall  468,  918 

Raphael  t;.  Bank  of  England  837 

V.  Boehm  471,  472,  847,  901 

V.  Mullen  58,  76 

Rarick  v.  Vandevier  133 

Rashleigh  v.  Master  566,  747,  891,  894 

Rastel  V.  Hutchinson  135 

Ratcliffe  v.  Dougherty  676 

r.  Elli.son  226 

V.  Graves  464 

V.  Huntley  674 

V.  Winch  440,  482 

Rathburn  r.  Clark  602  r 

V.  Platner  596 

V.  Rathburn  162 

Ravisies  v.  Allston  591 

Rawe  V.  Chichester  196 

Rawleigh's  Case  147 

Rawlings  v.  Adams  324 

V.  Fuller  874 

Rawlins  v.  Goldfrap  615 

Rawson  v.  Lampeman  299 

V.  Nicholls  682 

Ray,  £x  parte  647,  648 

V.  Adams  112 

V.  Doughty  415,  417,  418 

r.  Rung  322 

V.  Simmons  79,  99,  587 

Ravbold  v.  Raybold  82,  127,  900,  918 

Ravi  V.  Rayl  1-37 

Raymond  v.  Holden  17.  328 

V.  Webb  764,  770 

Ravner  v.  Mowbray  250,  257 

'  V.  Pearsall  225 

Raynes  v.  Raynes  454 

RaVnolds  r.  Hanna             .  827  a 

Rea  V.  Williams  1-36 

Reach  i'.  Kennegate  181,  226 

Read  v.  Brewer  658 

V.  Devavnes  272 

V.  Head'  544,  545 

V.  Huff  143 

V.  Lichfield  571 

V.  Patterson  248 

V.  Power  320 

V.  Robinson  97,  259,  593 

V.  Snell  359,  363.  369 

V.  Steadman  94,  152,  437 

V.  Truelove  261,  264,  268,  401 

Readdy  v.  Pendergast  201 

Reade  v.  Livingstone  647 

V.  Reade  342,  871,  872 

V.  Silles  724 

V.  Sparkes  886,  888,  500 


INDEX   TO   CASES   CITED. 
[Keferences  are  to  sections.] 


CXIX 


Reading  v.  Wilson 

607 

Ready  v.  Kearsley 

76,  2'jy 

Reagan  v.  McKibben 

127 

Rearich  v.  Swineheart 

226 

Rector  f.  Fitzgerald 

22;j 

t>.  Gibl)on 

127 

Rede  v.  Oakes 

780 

Redenour  v.  Wherritt 

260.  261 

Redfern  v.  Middleton 

2y'j 

Red  tit-Id  v.  Kedtield 

8U2 

Redlbnl  v.  Catroa 

2.J3 

V.  Gibson 

232 

,235 

,  237,  2:JU 

Redlieitner  v.  Pyron 

5U8 

794 

7'J8,  800 

Redingtun  v.  Kedington 

126 

Ul, 

l.J'J,  143, 

145 

,146 

,  147,  347 

Redwick,  In  re 

275 

Redwood  V.  Riddick 

863,  880 

Reece  v.  Allen 

17,  328,  602  na 

V.  Frve 

433,  863 

Reech  v.  kennegal 

900 

Reed  v.  Beazley 

672,  673 

V.  Buys 

658 

V.  Dickey 

217 

V.  Gordon 

301 

V.  Johnson 

601 

V.  Lukena 

82 

122,  231 

V.  Marble 

438 

t".  N'orris 

206 

V.  O'Brien 

102,  878 

V.  I'ainter 

137,  865 

V.  Warner 

206 

V.  Whitney 

324,  342 

Reede  r.  Emery 

590 

Reeder  v.  Barr 

242 

Rees,  Kx  parte 

282 

V.  Keith 

633,  640 

V.  Livingston 

82 

V.  Waters 

627, 

623,  631 

V.  Williams 

315 

353,  469 

Reese  i-.  Holmes 

633 

V.  Meetze 

917 

V.  Mum  an 

127 

V.  Wallace 

226 

V.  Wyman 

171 

Reeside  i''.  Peter 

764. 

770.  782 

Reeve  v.  Att.-Gen.     40, 

308, 

325, 

705,  721, 

722, 

729,  731 

V.  Parkins 

816 

V.  Kocher 

632 

r.  Strawn 

133 

Reeves  v.  Baker 

112,  113 

V.  Hrayton 

299 

V.  Hrvmer 

615 

r.  Dougherty 

855 

V.  Evans 

133 

V.  Heme 

514 

V.  Tnppan 

248 

Reformed  Dutch  Church 

V.  Mott 

744 

Keggs  r.  Swan 

82 

Regina  r.  Fletcher 

846 

V.  Shee 

328 

V.  White 

478 

Rehden  i\  Weslev 

417, 

446, 

848.  876 

Reichenhach  v.  Ouinn 

715 

Reid  V.  Bank  of  Slobile 

828 

V-  Blackstone 

112 

V.  Fitch                  82 

,88, 

127. 

142,  143 

V.  Gordon 

6, 

321.  765 

V.  Lamar 

655,  661 

lieid  V.  Morrison 

324 

V.  Mullius 

433,  782 

r.  Ktid 

79,  82,  24« 

,  277,  297 

r.  Shergold 

5116 

V.  Vanarsdale 

97 

Reiff  V.  Horst 

587 

Keil  V.  Baker 

602  66 

Keilly  V.  Wiiipple 

95 

Reiiihard  i'.  Bank  of  Kentucky 

593 

Keiiihart  r.  Bradshaw 

127 

lielfr.  Eberlv 

861 

Helfe  I'.  Kelfe 

234 

Kemick  r.  Butterfield 

602  o 

Kenmant  i'.  Hood 

903  a 

Ken  r.  Bulkeley 

784 

lietiard  v.  Graydon 

592 

Kendlesham  v.  Meux 

768,  784 

Kene  r.  (Jakes 

773 

Uenew  t\  Butler 

195 

Kennecker  v.  Scott 

675 

Kennie  r.  Ritchie 

275,  670 

f.  Young 

870 

Renwick  r.  Kenwick 

631 

Kenz  V.  Stoll 

83 

Reorganized  Church  v. 

Church  of  Christ  86 1 

Repp  V.  Repp 

232,  239 

Reresby  v.  Newland 

578 

Resor  v.  Kesor 

127 

Revel  V.  Revel 

639 

Revell  r.  Hussey 

122 

Rovett  V.  Harvey 

2»4 

Reynell  v.  Sprye 

171,  173 

187,  214 

Reynes  v.  Dumont 

247  a 

Keynish  v.  Martin 

512 

514,  517 

Reynolds,  Kx  parte 

198 

209,  275 

V.  Bank  of  Virginia 

594 

1'.  Brandon 

476  a 

V.  Bristow 

715 

V.  Caldwell 

126 

V.  Hennessy 

861 

V.  Jones 

240, 

346,  871 

V.  Morris 

132 

V.  Sisson 

910 

V.  Stark  County 

31 

I'.  .Sumner 

855,  863 

V.  W.ilker 

468 

I'.  Waller 

191 

Reynolds's  Settlement, 

In  re 

275 

Rex  V.  Anstrey 

511  6 

V.  Commissioners 

910 

V.  Fssex 

910 

V.  Flockwood 

414 

V.  Lexdale 

286 

V.  Nctherseal 

93 

V.  Newman 

700 

V.  Northwingfield 

214 

r.  Partington 

718,  724 

Rex  V.  Wall.ice 

270 

Rham  r.  North 

205 

Rhea  r.  Tucker 

132 

Rhett  r.  Mason 

119,  250 

Rhinelander  v.  Harrow 

220 

Rhoades  i'.  Rhnndos 

615.  616 

R.  I.  Hospital  Trust  Co 

.  V.  Harris  448.  549 

r.  Olnov 

723 

Rhodes  r.  Rates 

104.  204 

r.  Green 

126,  221 

r.  Sanderson 

199 

Rice  r.  Barrett 

23 

cxx 


Rice  V.  Burnett 
V.  Cleghora 
V.  Gordou 
V.  Kice 

V.  Satterwhite 
V.  Tlioiiii)soii 
V.  Tonnele 

Rich  V.  Beaumont 
V.  Cockell 
V.  Jackson 

Richards,  In  re 
V.  Baker 
V.  Chambers 
V.  Del  bridge 
V.  Ilazzards 
V,  Holmes 


INDEX   TO   CASES   CITED. 

[References  are  to  sectiona.] 

303,  310,  311 
195,  lys 

18  r 

124,  127,  226 

380 

639 

615,  617 

656 

647,  666,  668 

226 

511  a 

516 

633,  655 

96,  99 

591 


602  0,  602  p,  602  «,  602  v, 
782 
V.  Learning  238 

V,  Lewis  213 

V.  Manson  127 

V.  Merrimack,  &c.  Railway    754,  757, 

758 
V.  Perkins 
V.  Reeves 
V.  Richards 
V.  Seal 
Richardson,  Ex  parte 
V.  Adams 
V.  Baker 

V.  Bank  of  England 
V.  Bleight 


818 

104 

79,  640 

415 

454,  585 

137,  181 

232 

826,  827 

186 

116,  259 

921 

133 

185 

271,  503.  876 

260,  848,  876,  877 

195,  230 

885 

200 

126 

97,  98, 101 

237 

903  a 

430 

310,  312,  647,  666,  677 

138 


V.  Chapman 

V.  Cole 

V.  Daj' 

V.  Eyton 

V.  Hulbert 

V.  Jenkins 

V.  Jones 

V.  Larpent 

V.  Linney 

V.  Mounce 

V.  Richardson 

V.  Ridgely 

V.  Rusbridge 

V.  Spencer 

V.  Stodder 

V.  Taylor 

V.  Thompson  226 

V.  Woodburr  336,  338 

Richelieu  Hotel  Co.  v.  Miller  790 

Richen  v.  White  645 

Richerson,  In  re  448 

Richeson  v.  Ryan  343 

Richmond  v.  Adams  Nat.  Bank  200 

V.  Davis  484,  736 

V.  Hughes  602  q 

V.  Tavloe  748 

V.  Vobrhees  511  6,  678 

Richter  v.  Jerome  875 

Richwine  v.  Keim  641 

Rick's  Appeal  171 

Ricker,  Re  471 

V.  Moore  122 

Ricketts  v.  Bennett  486 

V.  Murrav  127 

V.  Ricketts  468 

Rickptts's  Trusts  784 

Riddle  v.  Emerson  86 

V.  Mandeville  244 


Riddle  v.  Whitehill 

127,  863 

Ridi'out  V.  Dowding 

151, 158 

V.  Lewis 

665 

Rider  v.  Bickerton 

230 

V.  Hulse 

645 

V.  Kidder 

126,  137, 139,  242 

V.  Mason 

386  a,  555 

V.  Maul 

230 

V.  Rider 

130 

v.  Sisson 

458,  768 

Ridgeley  v.  Johnson 

274,  411,  412 

Ridgely  v.  Cross 

253 

Ridge  way,  Ex  parte 

195,  457 

Ridgwav  v.  Wharton 

84 

Kidley,Vee 

071 

Ridley  v.  Hetmau 

855 

Rife  V.  Geyer 

118,  307,  311,  386  a 

Rigby,  Ex  parte 

404,  409,  411 

Kigden  v.  Vallier 

136,  364 

V.  Walker 

132 

Riggan  v.  Kiggan 

104 

Rigges  V.  Swann 

75 

Riggs  V.  Murray 

590,  591 

V.  Palmer 

181 

Right  V.  Cathill 

263 

V.  Smith 

298,  306 

Riker  v.  Alsop 

343,  848 

Rile}'  V.  Garnett 

308 

V.  Hampshire  County  Nat.  Bank      76 

V.  Martinelli 

169 

Rindle,  Matter  of 

54 

Ring  V.  Hardwick 

380,  509  a 

Ringham  v.  Lee 

243 

Ringgold  V.  Bryan 

239 

V.  Malott 

436 

V.  Ringgold       418,  419,  420,  458,  463, 

468,  471, 

475,  602  V,  769,  770, 

851,  918 

Ringo  V.  Binns 

206 
588 

V.  R.  E.  Band 

Rinker  v.  Bissell 

39 

Ripley  v.  Seligman 

124,  131 
242 

V.  Waterworth 

Rippen  r.  Priest 

338 

Ripperdone  ?'.  Cozine 

239 

Ripple  r.  Ripple 

569 

Rippon  V.  Dawding 

656 

V.  Norton 

386  5 

Rippv  V.  Gant 

189,  190 

Rishton  r.  Cobb 

515,  637 

Ritchie  v.  Broadbent 

633 

Rittgers  v.  Rittgers 

117 

Rittson  V.  Stordy 

64,  327 

Rivers  v.  Thayer 

644 

Rives  V.  Lawrence 

172 

Rivett's  Cnse 

739 

Roach  V.  Caraffa 

837,  863 

V.  Gavan 

614 

V.  Haynes 

511c 

V.  Hudson 

215 

V.  Jelks 

468 

Roanoke  B.  &  L.  Co. 

V.  Simmons          233 

Roarty  v.  Mitchell 

602  p 

Robards  v.  Wortham 

564 

Roharts  v.  Haley 

127 

Robb's  Appeal 

127,918 

Robbins  v.  Bates 

602  V, 

V.  Masteller 

237 

Robenett's  Appeal 

918 

INDEX   TO   CASES   CITED. 
[References  are  to  eectlona.] 


71,871 
277 
23 
640,  653,  6fi0 
018 
803 
841 
633 
324,  358,  359,  3C'J 
301 
200,  201,  310 
97 
873 
127 
145 
KobcTts     100,  103, 104,  165,  195,  214 
V.  Kobinson  815  c 

V.  Kose  239 

V.  Spicer  649 

V.  Stuyvesant  S.  D.  Co.  44 

V.  Tuustall  229,  230,  8GU 

V.  Ware  1-53 

V.  Wynne  182 

V.  Yancey  920 

Robertson  v.  Bullions  733,  748 


Roberdcau  v.  Rouse 
Robert,  Kx parte 

V.  (-'orniug 

V.  West 
Roberts,  Matter  of 

V.  Armstrong 

V.  liroonQ 

r.  CoUett 

V.  Dixwell 

V.  Kingsley 

r.  Mo.selcy 

V.  Mulliiider 

V.  New  York  El.  R.  Co. 

V.  Ojip 

V.  Kemy 


V.  Claskey 

V.  Collier 

V.  Gaines 

V,  Hardy 

r.  Johnson 

V.  Macklin 

V.  Norria 

V.  Paul 

V.  Rentz 

V.  Robertson 

V.  Scott 

r.  Skelton 

V.  Sublett 

V.  Wendell 

V.  Wood 
Robinett's  Appeal 
Robins  v.  Deshon 

I'.  Embry 
Robinson,  Matter  of 

V.  Allen 

V.  Appleton 

V.  Bishop 

V.  Briggs 

V.  Burritt 

V.  Butler 

I'.  Comyns 

V.  Cox 

V.  Cudwin 
V.  Cullum 
V.  Cuming 
V.  Dart 
V.  Gee 
V.  Geldard 
V.  Grey 
V.  Hardcastle 
V.  Harkin 
V.  Hook 
V.  Huffman 
V.  Jones 
V.  King 
t'.  I^ownter 
V.  Macdonald 
V.  ^laiilden 
V.  Miller 


Robinson  v.  Pett 
V.  Pierce 
V.  Preston 
V.  (^ueen 
V.  Robinson 


259,  428, 


127,  134, 


058 
546,  547 
262,  499,  501,  602  m 
511  a 
366,  662,  815  a 
141 
633,  861 
602 /j 
142 
215 
826 
122 
593,  594,  602  e 
901 
864 
470 
343 
287,  588,  590,  592 
259,  277,  282 
253 
234,  238 
381 
202 
166 
602  y 
304 
214 
199 
602  y 
13,  347 
661 
214 
573 
298,  305,  310 
383 
813,  848,  863 
855 
673 
127 
210 
597,  795,  802,  803.  805 
08 
67,  330 
324 


398,  440,  457,  458, 

V.  Schmitt 

V.  Smith 

V.  Tavlor 

V.  TiJkell  117, 

V.  Townshend 

V.  Wiieelwright 

V.  Wotlper 
Robinson's  Trust,  In  re 
liobison  V.  Codman 
Robles  V.  Clark 
Robson  V.  Flight  19, 

V.  Harwell 
Roby  V.  Boswald 

0.  Colehour 

V,  Smith 
Roca  V.  Byrne 
Roch  V.  C'allen 
Rochdale  Canal  Co.  v.  King 
Roche,  hi  re  275,  279, 

V.  Farnsworth 

V.  George 

V.  Hart  463, 

V.  O'Drien 
Rochefoucauld  v.  Boastead 

Rochell  V.  Tompkins 
Rochester,  Jn  re 
V.  Att.  Gen. 
Rochford  v.  Hackman 
Rochfort  V.  Fitzmaurice 

362,  369 

V.  Seaton 
Rockwood  V.  Rockwood 
Roden  v.  Jaco 

V.  Murphy 
Rodgers  v.  Marshall 

V.  Rodgers 
Rodman  v.  Munson 
Rodney  v.  Chambers 
Rodriquez  i'.  Hefferman 
Roe  V.  JefFery 

V.  Read 

V.  Tranmer 

V.  Vingut 
Rogan  V.  Walker 
Roger's  Trust 
Rogers,  Jn  re 

V.  Acaster 

V.  Adams 

V.  Bonner 

V.  Bumpass 

i\  Daniel 

V.  Dill 

V.  Donnellan 

V.  Earl 

t'.  Fales 

V.  Jones 

V.  Keokuk 

V.  Linton 

r.  Ludlow 

r.  ^larshall 

V.  Murray 


CXXl 


904,  916,  918 
321 
136 
568 
147,  164,  187, 
462,  468,  469, 
551,  607 
377 
112,  207,  607 
151,  152 
118,  020,  624 
583 
671 
642 
117 
322,  324 
140,  518 
273,  530,  803 
86,  226 
076 
79,  127,  206 
55 
828 
862 
869 
290,  291,  292 
199 
137 
464,  468,  894 
851,  861,  867 
162, 
246,  828 
661 
451 
746 
388,  555 
359,  300,  361, 
,  371,  372,  374 
813 
1S2 
602 /> 
330 
107,  108 
541 
783 
672 
243 
380 
336,  337 
379 
398,  511  6 
602  d 
556 
472 
633 
828 
239 
639 
843 
610 
126 
226,  301 
r,64 
223 
74  M 
883 
310,  Of^O 
828 
133 


cxxu 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Rogers  v.  Patterson 

606 

Rossiter  v.  Trafalgar  Life  Asi 

.  Co,         779 

V.  Ramey 

79 

Rosslyn's  Trust 

395 

V.  Kogers      59,  128,  1-37, 

145,  151, 153, 

Rotcli  V.  Livingston 

891 

163,  206,  297,  559, 

562,  600,  672, 

Roth,  Be 

465 

698,  826 

Rothmaler  v.  Myers 

272 

V.  Simmons 

134,  215 

Rothschild  v.  Daugher 

223 

V.  Skillicorne 

795,  796,  800 

V.  P'rank 

264 

V.  Smith 

661 

Roth  well  V.  Dewea 

126,  135,  215 

V.  Soutten 

616 

V.  Rothwell 

826,  827 

V.  Tliomas 

699 

Roupe  V.  Atkinson 

633 

T.  Tyley 

126 

Rous  V.  Jackson 

503 

V.  Vail 

591 

Routh  V.  Howell               406, 

443,  465,  914 

V.  Ward 

661,  680 

V.  Kinder 

595,  877 

V.  Wheeler 

762 

Routledge  v.  Dorrill 

379 

V.  White 

330,  668 

Row  V.  Dawson 

68 

Roger's  Appeal 

891,  900 

V.  Jackson 

645 

Roger's  Estate 

393,  472 

Rowan  v.  Chute 

122 

Roggenkamp  v.  Roggenkamp 

166,  245 

V.  Lamb 

199,  602  aa 

Roland  v.  Coleman 

243 

Rowe,  In  re 

863 

Rolfe  V.  Budder 

647 

V.  Beckett 

490 

V.  Gregory           166,  828 

840,  861,  865 

V.  Chichester 

538 

Roller  V.  Spihnore 

172 

V.  Lewis 

490 

Rollins  V.  Marsh 

607 

V.  Rowe 

451,  666 

V.  Mitchell 

181,  245 

Rowe  11  V,  Freese 

137 

Rolfs  Case 

693 

Rowland  v.  Best 

468 

Ronald  v.  Buckley 

607 

V.  Morgan                 373,  390,  476  a,  928 

Roofer  v.  Harrison 

438 

V.  Witherden 

444,  463 

Rook  v.  Worth 

605,  611 

Rowletts  i>.  Daniel 

299 

Rooke  V.  Worrell 

572 

Rowley  v.  Adams              438 

476,  535,  536 

Rooker  v.  Rooker 

828 

V.  Rowley 

511a 

Roome  v.  Phillips 

500,  766 

V.  Union 

665,  691,  849 

Roosevelt  v.  EUithorp 

891 

Rowton  V.  Rowton 

84,  324 

V.  Mark 

559 

Roy  V.  Beauforts 

192 

V.  Roosevelt 

441 

V.  Gibbon 

825,  827 

V.  Van  Alen 

913 

V.  McPherson 

149 

Root  V.  Blake 

126 

V.  Monroe 

448 

Roper,  In  re 

646 

Royal  V.  Royal 

901,  913 

V.  Halifax 

597,  785 

Royall  V.  McKenzie 

415 

V.  Holland 

17 

Royce  v.  Adams 

277,  287 

V.  McCook 

232,  238 

Royds  V.  Royds 

901 

V.  Radcliffe 

152 

Royer's  Appeal                 458, 

463,  606,  607 

V.  Roper 

679 

Rozell  ?'.  Vansyckle 

189 

Roscommon  v.  Fowke 

511c 

Rucker  v.  Abell 

149 

Rose  V.  Crockett 

275 

Rudisell  v.  Watson 

647,  649,  651 

V.  Cunningham 

93 

Rudland  v.  Crozier 

119 

V.  Gibson 

126 

Rudy's  Estate 

160,  451 

V.  Rose 

747,  891 

Rudyard  i\  Neirin 

635 

Roseben-v  v.  Taylor 

584 

Ruff  r.  Summers 

918 

Roseboom  v.  Mosheer 

262,  270,  785 

Ruffin  V.  Harrison 

263 

Rosenbaum  v.  Garrett 

72 

Rugby  School 

700 

Rosenberger's  Appeal 

852 

Rugefy  V.  Robinson 

815  a 

Rosevelt  v.  Fulton 

171,  187 

Ruhe  V.  Buck 

658 

Rose  Will  Case 

724 

Rumboll  V.  Rumboll 

144,  145,  146 

Rosher,  In  re 

671 

Rumfelt  V.  Clemens 

680,  685 

Roshi's  Appeal 

730,  733 

Rumph  V.  Abercrombie 

187, 189 

Ross  V.  Barclay 

499,  500 

Rundle  v.  Rundle 

139 

V.  Duncan 

65 

Rundlett  v.  Dale 

590 

V.  Ewer 

655 

Runkle  v.  Gaylord 

602  z 

V.  Gill 

608 

Runj'an  v.  Coster's  Lessee 

45 

V.  Goodsall 

509 

Rupp's  Appeal 
Rush  V.  Dilks 

127 

V.  Hegenian 

132,  136 

656 

V.  Horton 

222 

V.  Steele 

468 

T.  Morton 

639 

V.  Vought 

173,  664 

V.  Ross 

699,  826 

Rush's  Estate 

459,  460 

V.  Whitson 

237 

Rushloy  V.  Mansfield 

189 

I'.  Willoughby 

672 

Rushworth,  Ex  parte 

210 

Ross's  Charity 

701 

Rushworth's  Case 

196 

Ross's  Trust 

670 

Russell  V.  Allen        133, 138, 

142,  693,  730 

Rossett  i'.  Fisher 

602  V 

V.  Buckhout 

466 

INDEX    TO   CASES   CITED. 
[Eeferences  are  to  sectiooB.] 


CXXlll 


Russell  V.  Clark 

244 

Salinas  t'.  Pearsall 

127 

V.  Clowes 

4.J7 

Salisbury,  In  re 

605,  610 

r.  Coffin 

299,  302 

V.  Bif^elow 

498,  602  ib 

t".  Dickson 

652 

t'.  Clarke 

137 

V.  Du6on 

602  /•/• 

Salmon,  In  re 

467 

r.  Jackson       77,  83 

,93, 

lie. 

120,  128, 

V.  Cuttfi 

195, 199.  202 

133,  714 

c.  Hoffman 

232 

v.  Kellett 

624, 

6UU,  72(; 

Salomans  v.  I^in^ 

877 

t'.  Kennedy 

251 

Saliiway  v.  Strawbridge 

340,  494,  495 

V.  Lasher 

604 

Sal>bur\-  t".  Bagott 

830 

V.  lAjile 

126 

c.  lilack 

171 

V,  Lorinp 
f.  McCall 

544 

Salt  f.  Chattaway 

160 

245,  343 

Salter,  Kx  parte 

617 

V.  Milton 

815  a 

f.  Bradshaw 

188 

V.  I'evtoa 

24 

12!),  803 

r.  Cavanagh 

151,  855 

V.  I'luice 

225 

708,  SOU 

Saltern  f.  Melliuish 

183 

V.  Kussell 

7C8,  70'J 

Saltmarsh  v.  Barrett 

152, 

158,  408,  470, 

V.  Southard 

220 

471 

V.  Woodward 

593 

f.  Bean 

209 

Russell's  Appeal 

104 

p.  Bum 

002  r 

Case 

52,  53 

Saltonstall  f .  Sanders 

687, 

699.  705.  709, 

Patent 

G7 

712 

720,  724,  748 

Russian  Snratts'  Patent, 

In  re 

752 

Saltoun  V.  Hanston 

260 

Kuston  r.  liuston 

562, 

565,  571 

Salusbury  f.  Deuton 

248, 251,  252.  255, 

Kutjcers  r.  Kinj;sland 

218 

250,  714 

Rutherford  r.  Kuff 

191 

Sal  way  r.  Sal  way 

443,  635 

Rutland  v.  Rutland 

154 

Sammes  v.  Richmond 

894 

Rutledge,  Ex  parte 

550 

Sanipay  ».  Gould 

287, 

288,  375,  509 

i\  Smith 

79, 83, 

320, 

598,  798 

Sample  r.  CouliJon 

134,  137 

Ryall  V.  KoUe 

68, 

345, 

438 

835,  837 

Sanborn  v.  Plowman 

863 

f.  Kvall 

82, 

835,  839 

r.  Sanborn 

97 

Ryan  r.  Bibb 

328,  330 

Sanchez  v.  Dow 

861 

I".  Dox 

215,  226 

Sandars  v.  Richards 

809 

I'.  Doyle 

217 

Sanders  r.  Deligne 

218 

V.  I^Iahan 

252 

I'.  Miller 

903  a 

V.  O'Connor 

79 

r.  Page 

633,  653 

V.  Porter 

820  a 

r.  Rodney 

672 

V.  Spurill 

639 

r.  Rogers 

460,  847 

Rycroft  i'.  Christy 

102 

104 

105,  049 

Sanderson  r.  Pearson 

918 

Ryder,  Matter  of 

010 

r.  Walker 

12S 

195,  198,  902 

V.  IJickerton 

453 

460 

462 

407,  848 

V.  White 

724 

730,  744,  748 

V.  French 

849 

Sanderson's  Trust 

119,  152.  386,  386  b 

V.  Iluise 

676,  678 

Sandes  v.  Cooke 

358 

V.  Loomis 

133 

Sandford  r.  Flint 

602  ee 

Ryland  r.  Smith 

639,  640 

v.  Jodrell 

882 

Rymer,  Jn  re 

S. 

720 

Sandford  Charity. 
Sandon  v.  Hooper 
Sands  r.  Cliamplin 

V.  Nugee 
Sandys  v.  Sandys 

282 
915 
560 

502 
578,  892 

Saagar  v.  Wilson 

197 

t'.  Watson 

900 

Sabin  v.  Heape 

785, 

800, 

801, 

802,  803, 
805 

Sanford  r.  Hamner 
I'.  Irby 

166 
305 

r.  Stickney 

602  0,  602  V 

V.  Sanford 

79,166 

Sacia  r.  Berthoud 

225,  810 

Sangster  r.  Love 

602  n 

Sadd,  In  re 

907 

Sangston  r.  Gaither 

592 

Sadler  v.  Hobbs 

261, 

416,  417, 

419,  421, 

p.  Gordon 

63 

422 

Sansom  r.  Rumsey 

183 

V.  Houston 

600 

Sargent  v.  Baldwin 

104 

V.  Lee 

543 

t'.  Bourne 

118 

V.  Pratt 

511a 

v.  Burdett 

827  a 

Sadler's  Appeal 

217 

V.  Cornish 

43 

SalTord  t'.  Hind 

142,206 

r.  Franklin  Ins.  Co 

98 

V.  Rantoul 

79 

V.  Howe 

'  602  rf,  602 1.  602  n 

Sa^e  V.  Culver 

242 

f.  Sargent 

551,  899 

Sale  V.  Moore 

112 

113,  116 

Sartill  V.  Robeson 

324 

V.  Saunders 

633 

Satterwhite  r.  Littlefield 

913 

r.  Thorn  berry 

114,  100 

Saul  r.  Pattinson 

517 

Salem  Mill  Dam  v. 

Ropes 

757 

Saulsbury  v.  Corwin 

658 

CXXIV 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Saulsbury  f .  Denton 

112 

Saunders  v.  Bournford 

347 

V.  Collin 

855 

V.  Cramer 

208 

V.  Davies 

571 

V.  Dehew 

217,  218,  828 

V.  Gregory 

456 

V.  Houghton 

54G,  547 

V.  Leslie 

235,  236 

t'.  Miller 

908 

V.  Kichards 

433,  848 

V.  Saunders 

891,  896 

V.  Schmaelzle 

334,  343 

V.  Yauticr 

396,  509  a,  622 

V.  Webber 

401,  410 

Saunderson  v.  Steams 

262 

Saurez  v.  De  Montigny 

223 

Savage  v.  Benhani 

639 

V.  Brocksopp 

176 

V.  Carroll 

842 

V.  Dickson 

891 

V.  Foster 

53 

r.  O'Neil 

676 

V.  Tvers 

359 

V.  Williams 

204 

Savery  ".  King 

202 

Savilie  V.  Tancred 

246 

Savings  Bank  v.  Bates 

588 

Savings  Fund's  Appeal 

927 

Sawtelle  v.  Witham 

700 

Sawyer  v.  Baldwin 

903  a 

v.  Birchmore 

924 

V.  Hoag 

207 

V.  Hovey 

186 

V.  Sawyer 

669,  848 

Sawyer's  Appeal 

262 

Saxby  v.  Thomas 

5116 

Saxon  V.  Barksdale 

225 

Saxon  Life  Ass.  Co.,  In  re 

851 

Say  V.  Barnes 

8.51,  918 

V.  Barwich 

171,  191 

Saye  &  Sale  v.  Jones 

312 

Saver's  Trusts 

385 

Sayers,  £x  parte 

345,  835,  837 

Sayles  v.  Bates 

678 

V.  Smith                    ' 

602  m 

Sayre  v.  Flourney 

639,  642 

V.  Frederick 

137 

V.  Townsends 

132 

Scadden  Flat  Co.  v.  Scadden  207 

Scales  V.  Baker  842 

V.  Maude  98,  99,  101 

Scanlan,  In  re  603 
Scarborough  v.  Borman    646,  648, 652,  653 

V.  Parker  900 

Scarisbrick  v.  Skelmersdale  160,  393 

Scarpellini  v.  Acheson  640 
Scarsdale  v.  Curzon                  364,  373,  389 

Scattergood  v.  Edge  377,  379 

r.  Harrison  432 

Scawen  v.  Scawen  146,  147 

Schaffer  v.  Lauretta  311 

V.  Wadsworth  920 

Schaffner  v.  Grutzmacher  127 

Schafroth  v.  Ambs  652,  680 

Schammel  v.  Schammel  612 

Schanck  r.  Arrnwsmith  576 

Schanewerk  v.  Hoberecht  5116,  766 

Schefiermeyer  v.  Schaper  181 


Schell,  In  re  918 
Schenck  v.  Barnes  96,  142 
V.  Ellenwood  782 
V.  Schenck  264,  341,  344 
Schermerhorn  v.  Barhydt  238,  562,  566 
V.  Cotting  382 
Schermerhorue  v.  Schenck  264,  344,  419 
V.  Schermerhorne  581 
Schieffelin  v.  Stewart  462,  471 
Schierloh  v.  Schierloh  126, 142 
Schlaeper  v.  Corson  127 
Schlessinger  v.  Mallard  160 
Schley  v.  Brovra  828 
V.  Lyon  311,  330 
Schluter  v.  Bowery  S.  Banks  51 
Schnebly  v.  Ragaa  234 
Schnure's  Appeal  569 
Schofield  V.  Jones  658 
v.  Wolley  863 
Scholefield  v.  Redfern  544, 551 
V.  Templar  172 
Scholev  V.  Goodman  672 
Scholle  V.  Scholle  195 
School  V.  Dunkleberger  117,  328 
V.  Kirwan  463 
V.  McCully  769 
School  Directors  v.  School  Directors      865 
School  District  v.  Peterson  437  a 
School  Dist.  Greenfield  v.  First  Na- 
tional Bank  443 
School  Trustees  v.  Wright  84 
Schoolbred  v.  Drayton  501 
Schoon  maker  r.  Sheely  359 
V.  Van  Wyke  428 
Schoonoven  v.  Pratt  602  x 
Schouler,  Petitioner  276  a,  705,  715 
Schroder  v.  Schroder  872 
Schultze  V.  New  York  City  126 
Schuster  v.  Schuster  143 
Schutt  V.  Large  222 
Schutter  v.  Smith  382,  391 
Schuyler  v.  Hoyle  639,  640,  641 
Schwartz  v.  Sears  602  cc 
Schwartz's  Estate  245,  765 
Scoby  V.  Blanchard  137,  165 
Score  V.  Ford  825 
Scott,  In  re  290 
Scott  V.  Atchison  456 
V.  Beach  60 
V.  Becher  816,  818,  827 
V.  Berkshire  County  S.  Bank  82 
V.  Colburn  754 
v.  Cumberland  563 
V.  Davis  195,  428,  670 
V.  Depevster  207 
V.  Devlin  593 
V.  Dobson  546 
V.  Dorsey  918 
V.  Freeland  195,  205,  602  w 
V.  Gamble  602  v 
V.  Haddock  850,  864 
V.  Harbeck  82 
V.  Harris  79,  226 
V.  Hastings  438 
V.  Hollingworth  551 
V.  James  633 
V.  Kane  96 
V.  Knox  866 
V.  Mann  199 


DJDF.X   TO   CASES  CITED. 
[References  are  to  sections.] 


CXXV 


Scott  V.  Moore 
V.  Nesbitt 
V.  N'icoll 
t'.  OrbinsoQ 
V.  I'urkins 
V.  Hand 
V.  Scott 

t'.  Sierra  Lumber  Co. 
V.  Spasliett 
V.  Steward 
V.  Surnam 
V.  Tlionipson 
V.  Tliorjie 


301 
71 

87;i 

232,  237,  2-i'J 

54t; 

275 

C8.} 

828 

629,  G32,  CytJ 

375,  760 

58,  239,  345 

210 

55 


V.  Tyler      225,  512,  514,  516,  809,  810, 

811,  815 

V.  West  393 

Scott's  F:state  891,  894 

Scouiiden  r.  Hawley  325 

Scowcroft,  In  rt  701 

Scra^ffsr.  Hill  233 

Scriven  v.  Taplev  645 

Scroggins  v.  Mcbougald  195 

Scroggs  V.  Scroggs  511  a 

Scroope  v.  Scroope  54,  146 

Scrope's  Case  511c 

Scruggs  V.  Driver  41 

Scudder  v.  Crocker  918 

Scull  V.  Reeves  602  «,  602  m 

Scully  V.  Delany  262,  419,  424,  440 

V.  Scully  878 

Scultliorpe  V.  Burgess  161 

V.  TiUer  439 

Scurlield  v.  Howes  416,  419,  421,  423, 

424,  847 

Seaburn  v.  Seaburn  748 

V.  Seagrave  674 

Seale  v.  Seale  366 

Seaman  v.  Cook  126, 127,  128,  132 

V.  Wood  385 

Seamans  v.  Gibbs  816  a 

Seamonds  i'.  Hodge  114 

Sear  v.  Asbwell  103,  107 

Searing  v.  Searing  639,  643,  647 

Searle  v.  Law  90, 100 

Sears  v.  Chapman  722 

r.  Choate  920 

V.  Cunningham  119 

V.  Livermore  782 

V.  Putnam  381,  382 

V.  Russell  312,  380,  383 

V.  Shafer  194,  201,  230 

t".  Smith  232,  237 

Seaver  v.  Fitzgerald  381 

V.  Lewis  562,  560 

Seaving  v.  Brinkerhoff  592 

Second,  &c.  Church  v.  Desbrow  116 

Second  Cong.  Soc.  r.  First  Cong.  Soc. 

714,724,  748 
Second  Cong.  Soc.  North  Bridge- 
water  I'.  Waring  328 
Security  Co.  v.  Garrett  124 
V.  Snow  248.  2.52,  382 
Seddon  v.  Connell  '  878,  879 
Sedgwick  v.  Stanton  214 
Sffger  V.  Leakin  358 
Seek'v  V.  Jago  108 
Seeling  t-.  Crawley  672 
Seers  r.  Hind  900 
Seesel  v.  Ewan  602  o 


Segond  r  Garland  660 

Segrave  v.  Kirwaa  181,  1H2 

.Sfguin's  Appeal  471 

Sfibert  r.  Minneapolis,  &c.  Ry.  Co.       894 


SeibcTt's  Appeal 
.Seibold  f.  Clirisman 
Seichrist's  Appeal 
.Seidler's  Estate 
Seitzinger's  Estate 
Selatter  v.  Cottam 
Selby  V.  Alston 
V.  Bowie 
V.  Cooling 
V.  Stanley 
Selden  v.  Vermiiyea 
Selden's  Appe;il 
Seldner  r.  McCreery 
Sell  r.  West 
Sellers  V.  Reed 
Seliew's  Appeal 
Sellick  V.  Mason 
Selph  V.  Howland 
Selsey  v.  Rhoades 
Selyard  v.  Harris 
Semphill  v.  Haj'ley 
Semple  v.  Bird 
Senhouse  v.  Earle 
Sergeant  v.  Ingersoll 
Sergison,  Ex  parte 

V.  Sealey 
Servis  v.  Beatty 
Seton's  Decrees 
Settembre  v.  Putnam 
Sewall  V.  Boston  W.  P.  Co. 
V.  Roberts 
V.  Wilmer 
Sewell  V.  Baxter 
V.  J)enn 
V.  Moxsy 
Sexton  V.  Hollis 
Seymour  v.  Bull 
V.  Delancey 
V.  Freer 
V.  McAvoy 
V.  Milford,  &c.  Ry. 
Seys  t'.  Price 

Sh'ackleford  v.  Bank  of  Mobile 
Shaeffer  r.  Sleade 
Shafer  v.  Davis 
Shaffer  v.  Watkins 
Shainwald  r.  Davids 
Shakeshaft,  Ex  parte 
Shales  V.  Shales 
Shall  V.  Biscoe 
ShallcToss  I'.  Oldham 
Shaltcr's  Appeal 
Shankiand's  .-\ppenl 
Shanley  v.  Baker 
Shannon  r.  Bradstreet 

('.  Cannev 
Shaplaiul  v.  Smith 
Shapleigh  f.  Pilsbury 
Sharp,  In  re 
V.  Leach 
f.  Lmig 
r.  Maxwell 
r.  I'raft 


Sharp 


616,  715 

143 

206,  215 

459 

827  a 

904 

13,  347 

770 

768 

237,  239 

280 

82 

460,  790 

212 

378 

764 

386  a 

681 

206,  228,  229 

877 

512 

232 

8.34 

218 

54,  336 

605 

232 

283 

126,  127,  129 

814 

104 

5116 

139 

150 

101 

126 

769 

187 

82.  863 

827  a 

757 

611 

500,  591 

173,  187 

184 

591 

873 

848,  876 

146,  147 

232,  238 

204,210  > 

490 

299,  305,  386  m 

160 

704 

680 

298,  .305,  312 

299,  748 

405 

104 

215 

676 

499 


134, 


271,  273,  290,  294,  337,  344, 
503 


CXXVl 


INDEX   TO   CASES   CITED. 
[ReferenceB  are  to  sectionfl.] 


Sharp  V.  Toy 

V.  Wrif,'ht 
Sharpe  r.  Consent 

V.  San  Paulo  Ry.  Co 
Sharpless  v.  Adams 

V.  Welch 
Sharpsteeu  v.  Tillow 
Sharshaw  v.  Gibbs 
Sliatler's  Appeal 
Shattock  V.  Shattock 
Shattuck  V.  Cassidy 

V.  Freeman 
Shaw,  Kxpiirte 

V.  Borrer 

r.  Boyd 

V.  Bunney 

t?.  Barney 

V.  Conway 

r.  Delaware 

V.  Galbraith 

V.  Huzzey 

V.  Lawless 

V.  Mitchell 

V.  Norfolk  Co.  Railway 

V.  Pickthall 

r.  Read 

r.  Rhodes 

r.  Shaw 

V.  Spencer 


V.  Thackray 

V.  Turbett 

r.  Weigh 

V.  Wright 
Shaw's  Trusts,  In  re 
Shay  V.  Sessamon 
Shearer  v.  Loften 
Shearin  v.  Eaton 
Shearman  v.  Morrison 
Sheatfield  v.  Sheatfield 
Shee  V.  Hale 
Sheener  v.  Lautzerbeizer 
Sheet's  Estate 
Sheffield  v.  Buckingham 

V.  Orrery 

t'.  Parker 
Sheidle  v.  Weishlee 
Shelborne  r.  Inchquin 
Shelby  v.  Perrin 

V.  Tardy 
Sheldon  v.  Dodge 

V.  Dormer 

V.  Easton 

V.  Harding 

V.  Stockbridge 

V.  Wildman 
Shellenberger  v.  Ransom 
Shelley  v.  Nash 
ShelleV's  Case 
Shelly  V.  Eldin 
Shelt'har  r.  Gregorv 
Shelton  v.  A.  &  T.  Co. 

V.  Hadlock 

r.  Homer 

V.  Shelton 

r.  Watson 
Shepard  t\  Creamer 

I'.  Pratt 
Shephard  v.  Richardson 


034 

8UU 

388,  555 

401,  873 

82'J 

438 

783,  785 

552,  554 

771 

658,  659,  663,  849 

71 

591,  593 

33U,  337 

476,  597,  789,  802,  915 

34 

199 

97 

891 

104 

320 

546 

112,  123,  907 

626,  641 

758,  761 

903  a 

143 

395 

129,  137 

157, 158,  225,  800,  809, 

810,  814,  846 

191 


890 

314,  315 
312 
484 
641 
602  e 
863 
246 
361 

388,  555 

590 

81,  262 

182 

379,  516 
465 
667 
226 
237 

126,  145 
590 

581,  597 
734 
133 
699 
863 
181 
88 

357,  370 
315 
672 
126 
658 
195,  308,  499 
75 

369,  371 

225,  437  a 

137 

602  d 


Siiephard  v.  Stark 
SihL'pheid  V.  Buvia 

V.  Mauls 

V.  McEvers    38,  98,  261, 

V.  Nottidge 

V.  I'hilbrick 

V.  White 
Sheppard,  In  re 

V.  Smith 
Sheppard' s  Trusts,  In  re 
Sheppards  v.  Turpin 
Sheratz  v.  Nicodemus      234, 

Sheridan  v.  Jones 

V.  Joyce  808, 

V.  Welch 
Sheriff  v.  Axe 

t'.  Butler 

V.  Neal 
Sheril  v.  Shuford 
Sherley  v.  Sherley 
Sherman  v.  Baker 

V.  Burnham 

V.  Dodge 

V.  Leman 

V.  New  Bedford  S.  Bank 

V.  Parish 

I.'.  Sandell 

V.  Sherman 

V.  Turpin 
Sherrard  r.  Carlisle 

t'.  Harborough 
Sherratt  v.  Bentley 
Sherrington  v.  Yates 
Sherwin  v.  Kenny 
Sherwood,  /jj  re 

V.  Amer.  Bible  Soc. 

V.  Andrews 

V.  Read 

V.  Smith 

V.  Sutton 
Shewell  v.  Dwarris 
Shewen  t;.  Vanderhorst 
Shibley  v.  Ely 
Shields  v.  Atkins 

V.  Thomas 
Shiers  v.  Higgons 
Shine  v.  Gough 

V.  Hill 

Shingle}',  In  re 
Shinn'sEstate 
Ship  V.  Hettrick 
Ship  Warre,  In  re 
Shipbrook  v.  Hinchinbrook 

Shipp  r.  Bowmar 
Shipton  V.  Rawlins 
Shirk  V.  La  Fayette 
Shirlej',  Fx  parte 

V.  Shattuck 

V.  Shirley    51,  277,  646, 

7).  Sugar  Refinery 
Shirl}'  V.  Ferrers 
Shirras  v.  Caic 
Shively  v.  Bowlbj' 
Shockiey  v.  Fisher 
Shoemaker  v.  Comm'rs 


468 

109 

469 

268,  274,  401, 

594 

112,  116 

602  i6 

143 

282 

900 

275 

865 

235,  237,  238, 

239 

926 

,  832,  835,  85« 

602  A 

432,  904 

671 

206,  215 

918 

79 

571,  715 

654 

299 

910 

82 

467,  602 X 

137 

569 

655 

632 

152,  427 

270,  271,  898 

640 

305 

432,  923 
748 

98 

411,  602  an 

615 

228 

648 

474,  481 

540,  863 

433,  863 
828 
191 
218 
781 
121 
465 
462 

68 

416,  419.  421, 

423,  424,  444 

655,  6.56 

876 

55 

65R 

918 

647,  649,  653. 

666 

232,  239 

585,  ROO 

219 

41 

286 

41 


INDEX   TO   CASES   CITED. 


CXXVU 


[References  are  to  sections.] 


Shoemaker  v.  Smith 

I'.  Walker 
Shoufstall  V.  Adams 
Shook  V.  Shook  343 

Shore  v.  Shore 

V.  Wilson 
Short  I'.  Currier 

V.  Moore 

V.  Wilson 
Shortel's  Afipeal 
Shortz  V.  Uiiiin^st 
Shotweil  V.  Mott  699 

r.  Murray 
Shoufe  I'.  Grilfitlis 
Shouk  V.  lirown 
Shovelton  v.  Shovelton 
Shrewsbury'  v.  Hornbury 

V.  Shrewsbury 
Shrewsbury,  &c.  Railway  v 

&  N.  W.  Kiiilway 
Shrewsbury  Scliool,  In  re 
Shryock  r.  Wafrgoner 
Shubar  v.  Winding 
Shuman  v.  Keigart 

r.  Shuman 
Shumway  i".  Cooper 
Shunk's  Appeal 
Shupe  V.  Bartlett 
Shurtleff  v.  Witherspoon 
Sickles  t'.  New  Orleans 
SiddoD  r.  Charrells 
Sidle  V.  Walters 
Sidmouth  v.  Sidmouth    130, 

Sidney  v.  Shelley 
Sid  way  v.  Nichol 
Sieman  v.  Austin 

V.  Schunck 
Siemers  v.  Schrader 
Siggers  v.  Evans 
Sigournej'  v.  IMunn 
Silcox  I".  Harper 
Silk  17.  Prime 
Sillibourne  v.  Newport 
Silsbury  v.  McCoon 
Silverman  r.  Kristufek 
Silvers  v.  Potter 
Silverthorn  v.  McKiuister 
Sinie  V.  Howard 
Simes  ».  Eyre 
Simmonds  v.  Borland 

V.  Palles 
Simmons  v.  Baynard 

I'.  Hurrell 

r.  Drury 

r.  Horwood 

r.  McKinlock 

V.  f)liver 

V.  Richardson 
Simms  v.  Smith 
Simon  V.  Barker 
Simond  v.  Hilbcrt 
Simons  v.  Bedell 

r.  S.  W.  Ry.  Bank 
Simpson  v.  Chapman 

t',  Gutteridge 

r.  Jones 

V.  ^loore 

t>.  Munder 


132 

75 

1,41],  414,  mi 

8-iO 

733 

184 

627,  639 

920 

851 

334,  343 

,  730,  737,  748 

184 

166,  109 

652 

112,  120,  888 

705 

348,  581,  597 

.  Loudon 

757 

427 

58,  279 

589,  593 

641 

66 

611 

918 

145 

918 

744 

218 

77,  137 

143,  144,  146, 

147 

157 

386  a 

142 

142 

890  a 

270,  593,  596 

136 

732,  741 

567 

511 

128 

299 

127 

205,  501,  785 

82 

877 

536 

593 

62,  511  b 

729 

569 

648 

277 

453 

328,  520 

76,  86,  863 

714,  729 

239 

79 

242 

430 

244 

605 

545 

232 


Simpson  c.  Sikes  687 

V.  Simpson  672,  673 

Simpson's  Appeal  262 

Sims  f.  Huntley  602  W> 

V.  Lively  598,  794,  795 

V.  Marryal  67 

V.  Pierce  358 

V.  Sims  562 

Simson  v.  Jones  34 

Simeon's  Tru.sts  455 

Sinclair  v.  Jackson  349,  402,  404,  409.  411, 

412,  415,  5:i8,  529,  779 

Sing  Bow  V.  Sing  Bow  126 

Singleton  v.  Lowndes  919 

V.  Scott      254,  408,  602  o,  602  q,  602  x, 

602  y,  602  z,  602  aa 


Sires  v.  Sires 
Sise  V.  Willard 
Sisson  V.  Shaw 
Siter  V.  McClanachau 
Siter's  Case 
Sites  V.  Eldredge 
Sitwell  f.  Bernard 
Skeats  v.  Skeats 
Skeats'  Settlement,  In  re 
Skeggs  V.  Nelson 
Skett  t'.  Whitmore 
Skillman  r.  Skillman 
Skingley,  Jn  re 
Skinner  v.  Dodge 

r.  James 

V.  McDonall 

V.  Orde 

V.  Skinner 

V.  Tirrell 
Skinner's  Appeal 

Trusts,  Jie 
Skipwith  t\  Cunningham 


Skirwing  v.  Williams 
Skrine  r.  Simmons 

f.  Walker 
Skrymsher  v.  Northcote 
Slack  V.  Slack 
Slade  V.  Rigg 

V.  Van  Vechten 
Slaney  r.  Witney 
Slanning  r.  Style 
Slater  f.  Hurlbut 

t'.  Oriental  Mills 

V.  Wheeler 
Slattery  v.  Watson 
Slaymaker  r.  Bank 

V.  St.  Johns 
Slee  r.  Manhattan  Co. 
Sleech  v.  Thorningtoa 
Sleeper  v.  Iselin 
Sleight  I'.  Lawson 

V.  Read 
Slemon  r.  Schurch 
Slevin,  In  re 

V-  Brown 

Slide  &  Spur  Gold  Mines  v.  Seymour    237 
Slinn,  In  re  97 

Sloan  f.  Cadogan  98, 101.  102 

r.  Coolhaugh  602  «e 

Sloan's  Appeal  568 

Slocombe  r.  Glubb  213 

Slocum  V.  Ames  545 


254 

920 

615,  618 

640 

633,  640,  641,  643 

248 

480,  550,  551 

143,  146,  147 

289 

238 

86,  137 

147 

121,  477,  552 

243 

126 

84 

603 

863 

658 

641,  642 

119 

591.  592,593, 

602  e,  602  an 

451 

226 

65 

157,  160,  397 

146,  147 

761,  878 

197,  428 

272 

541 

121,  920 

828 

414,  877 

827  a 

641 

75 

602  c,  602  n 

637 

99 

862 

676 

142 

727 

311,  312.  475 


CXXVUl 


INDEX   TO  CASES  CITED. 


Slocum  r.  Barry 

V.  Marshall 

V.  Slocum 
Sloman  t'.  Bank  of  England 


[References  are  to  sectioos.] 

Smith  V.  Henry 
V.  Hewett 
V.  Hollenback 


819 

77,  137,  201 

127,  783 

929 


Sloo  V.  Law 
Sloper  V.  Cottrell 
Small  V.  Atwood 


276,  413,  427,  822 
17,  105 
173,  639,  841,  849,  851, 
874 
260 
590 
270,  273,  585,  593 


V.  Ayleswood 

V.  Ludlow 

V.  Marwood 
Smart  r.  Bradstock 

V.  I'rujean  93,  108 

Smedley  v.  Varley  202 

Smee  v.  Martin  613 

Smeed,  Jie  615 

Smethurst  v.  Hastings  458 

Smiley  v.  Dixon  538 

V.  Pearce  171 

V.  Wright  324 

Smilie  V.  Biffle  621 

Smilie's  Estate  633,  641 

Smith,  Ex  parte  412 

Smith,  In  re  83, 90,  263,  453,  460,  466,  517, 
541,  783,  917 

V.  Acton 

V.  Anders 

V.  Atkins 

V.  AttersoU 

V.  Atwood 

V.  Aykwell 

V.  Babcock 

I'.  Baker 

V.  Bank  of  Scotland 

r.  Barnes 


863 

602  66 

759 

86 

630 

214 

171 

126 

171,  178,  179 

821 

900,  926 

217,  828 

202,  203 

214 

223 

79, 127,  133,  137 

863,  869 

126,  665 

228,  229,  855 

602  66 

358 

837,  863 

591 


V.  Bolden 

V.  Bowen 

V.  Brotherline 

V.  Bruning 

V.  Burgess 

V.  Burnham 

V.  Calloway 

V.  Caraelford 

V.  Clay 

V.  Colvin 

V.  Collins 

V.  Combs 

V.  Conkwright 

V.  Cooke  131 

V.  Cowdery  513,  517 

V.  Cuff  212 

V.  Cuninghame  394 

V.  Davis  260 

V.  Death  765 

V.  Des  Moines  Nat.  Bank  122 

r.  Doe  602  fZ 

V.  Drake  195,  205 

V.  Dresser  907 

V.  Dunwoody  380 

V.  Evans  578 

V.  Everett  809 

i".  Foley  578 

V.  French  849 

V.  Frost  602  w 

V.  Gillam  858 

V.  Glover  865 

V.  Guvon  795,  796 

V.  Hail  466 

V.  Harrington  699,  920 


V.  Howe 
V.  Howell 
V.  Howlett 
V.  Isaac 
V.  Jackman 
V.  Jameson 
V.  Jeft'rej's 
V.  Kane 
V.  Kay 
V.  Kennard 
V.  Kimbell 
V.  King 
V.  Kinney 
V.  Knowles 
V.  Lansing 
V.  Leavitt 
V.  Lockabill 
I'.  Loewenstein 
v.  Lowell 
V.  Lyne 
V.  McConnell 
V.  McCrary 
V.  McDonald 
V.  Mason 
V.  Matthews 
V.  Maxwell 
V.  Metcalf 
V.  Mitchell 
r.  Moore 
V.  Oliver 
r.  Patton 
V.  Perkins 
V.  Phillips 
V.  Pincombe 
V.  Porter 
V.  Portland 
V.  Provin 
t'.  Ramsey 
V.  Rickards 
V.  Roberts 
V.  Sackett 


677 
677 
134 

680 

82,  83,  85,  139 

467 

428 

568 

17 

82 

627 

210 

471 

378 

54,  151 

490,  771,  783 

250,  260,  261 

428,  451 

593 

299 

448 

591 

104 

414 

500 

52 

142 

79,  83,  633 

361 

312 

171 

386  a,  555,  815  a 

275,  724 

77,  138 

770 

347 

185 

559 

873 

199,  602  p 

127 

171 

347 

126, 133, 137 


V.  Smith  49. 117, 118, 134. 213,  270. 284, 
305, 438,  451, 453. 459.  465, 591, 603, 
764,  818,  890,  903  a,  924 


t'.  Snow 
V.  Speer 
V.  Starr 
V.  Stowell 
V.  Sutton 
V.  Swan 
V.  Thompson 
V.  Tome 
V.  Towers 
V.  Tnwnshend 
V.  Walter 
V.  Wheeler 
V.  Wildman 
V.  Wilkinson 
v.  Willard 
V.  Wood 
V.  Wright 
V.  WyckoS 
V.  Young 
V.  Zaner 
Smith's  Estate 


Smith's  Settlement,  fn  re 


882 

82 

310  a,  652.  653 

739 

260 

408 

318 

82 

827  a 

195 

217 

270,  273,  806 

117,  118,  411,  511 

82 

145 

855 

206 

573 

67 

55 

82,  163,  359 

282 


INDEX   TO   CASES   CITED. 
[References  are  to  sectioiu.] 


CXXIX 


Smitheal  v.  Gray  12f. ' 

Smithsonian  InbVn  v.  Meech  12G,  14.0  i 

Suivth  V.  Burns  45'J  ' 

'f.  Carlvsle  243 

r.  Phillips  Academy  742 

Smythu  V.  Sniythe  540 

Snape  v.  Turton  511  c  j 

Snashall  f.  Met.  K.  Co.  678 

Sueer  v.  Stutz  2t>4  [ 

Sneesby  v.  Thome  770,  809  , 

Snelgrove  r.  Snelgrove  218 

Snell  V.  Dwight  21  i 

V.  Elam  127 

Snelling  r.  McCreary  450 

V.  Utterback.  137  j 

Snider  r.  Johnson  137 

V.  Udell  \V.  Co.  212  , 

Snow  V.  Booth  8G3 

t'.  Callum  918 

V.  Culler  379 

V.  Ilutchins  65G 

f.  Teed  256  ' 

Snowden  f.  Dunlavey  35 

Suowdon  r.  Dales  386,  555 

Snowhill  f.  Snowhill        610,  611,  639,  641 

Snyder  r.  Snyder  648,  652,  676 

V.  SpoiKible  222 

Snyder's  Appeal  652,  670,  918  m 

Soames  i'.  Martin  118 

Soar  t'.  Ashwell  246,  863 

I'.  Foster  144 

Socher's  Appeal  171 

Society  v.  Pel  ham  468 

Soc,  &c.  V.  Hartland  299 

Soc.   for   Propagating  the  Gospel  r. 

Att.-Gen.  701,  731,  736,  741 

Soc.  of  Orphan  Boys  v.  New  Orleans     748 

Sockett  V.  Wray  52,  630,  633,  655 

Soggins  V.  Heard  172,  863 

Sohier  v.  Eldredge  476  a,  551,  556 

f.  Mass.  Gen.  Hosp.  610,  724 

r.  St.  Peter's  Church  748 

V.  Trinity  Church  121,  737 

V.  Williams  784 

Solinsky  v.  Lincoln  Sav'gs  Bk.  918 


Sollee  V.  Croft 

836, 

842, 

864,  914, 
918 

Soller  V.  Chandler 

428 

Solliday  v.  Bissett 

918 

V.  Gruver 

575 

Solliday's  Estate 

448 

Somers  v.  Craig 

647 

V.  Overhulser 

126 

Somerset,  In  re 

646 

848,  801 

Somes,  In  re 

287 

V.  Skinner 

246  a 

t'.  Stokes 

200 

Sonley  r.  Clockmakers' 

Co. 

38,  45,  240 

Soohan  v.  Philadelphia 

748 

Soper  r.  Brown 

371 

Soresby  r.  Hollins 

709 

Sothron,  In  re 

93 

Sotone  V.  Scott 

843 

Soulard's  Estate 

97,  163 

South,  Fx  parte 

68 

V.  Allevne 

310 

V.  Ilav 

426 

South  Scituate  S.  Rank 

r.  Ross 

766 

South  Sea  Co.  v.  Wymondsell 

861,  862 

South    Yorkshire,  &c.    Ry.   v.    Great 

Northern  My.  757 

Southampton  r.  Hertford         160,  393,  395 
.Southard  v.  I'lummer  676,  678 

Southcouil)  f.  E.\uter  869 

Southern  Indiana  Express  Co.  r.  U.  S. 

Express  Co.  21 

South  Eastern  Ry.  Co.  r.  Jortin  7.01 

Southouse  I'.  Bate  152,  157 

Southwell  V.  Ward  277,  287 

Souverbve  v.  Arden  103,  104,  161 

Sowarsby  i-.  Lacy  582,  610,  787,  703 

.Sowerby  r.  Clayton  461 

Sowers  V.  Cvrenius  701 

Spalding  r.  Ikliller  5.53 

V.  Shalmer  416,  597,  789,  796 

Spangler's  Appeal  918 

Sparhawk  v.  liuell  418,  422,  426,  612,  618, 

624 

V.  Cloon  386,  555 

V.  Sparhawk  275 

Spark's  Estate  262 

Sparks  r.  Hess  232 

V.  Kearney  602 /> 

Sparling  r.  Parker  439,  551 

Spaulding  v.  Kendrick  790 

Speakman  v.  Speakmao  380 

I'.  Tatem  401,  875 

Spear  r.  Grant  242 

f.  Spear  453,  612 

V.  Tinkham  463,  468,  541,  547 

r.  Ward  680 

Speed  V.  St.  Louis,  &c.  R.  Co.  299 

Speer  v.  Burns  126 

r.  Haddock  602 /> 

Speidel  v.  Henrici  863,  865 

Speight  V.  Gaunt  404,  409,  457,  813 

Speigleniyer  v.  Crawfort  173 

Spence  v.  Duren  171 

V.  Spence  305,  358 

V.  Whitaker  918 

V.  Widney  700,  920 

Spencer  v.  Anon  602  s,  602  x 

V.  Duncan  863 

V.  Ford  602  e 

I'.  Hawkins  598 

V.  Smith  420 

V.  Spencer  393,  901,  917 

V.  Terrel  137 

V.  Weber  466,  790 

Spencer,  Re,  Thomas  v.  Spencer  671 

Sperling  v.  Rochfort  630 

Spessard  v.  Itohner  315 

Spicer  v.  Ayres  164 

V.  Dawson  652 

Spickernell  r.  Hotham  859,  863 

Spies  V.  Chicago  &c.  R.  Co.  875 

Spindle  v.  Shreve  72,  815  n.  827  a  . 

Spindler  v.  Atkinson  205,  428 

Spink  V.  Lewis  160 

Spinning  I".  Blackburn  681 

Spirrett  v.  Willows  164,  635,  649 

Spitzer  v.  Spitzer  248 

Spokane  County  r.  First  Nat.  Bank      823 

Spooner  v.  Whiston  212 

Spotswood  r.  Pendleton  610 

Spottiswoodie  i'.  Stockdale  585,  593 

Sprague  v.  Bond  865 

r.  Edwards  437  a 


VOL.    I.  —  i 


cxxx 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Sprague  v.  Smith 

7G2 

V.  Sprague 

358 

V.  Thurber 

1G3 

V.  Tyson 

660,  873 

V.  Woods 

162,  299 

Sprange  v.  Barnard 

113,  116 

Sprigg  V.  Bank  of  Mount  Pleasant         2-2G 

V.  Sprigg  102 

Spring  V.  Biles  256 

V.  Pride  195,  202,  670 

V.  Kandall  827  a 

V.  South  Carolina  Ins.  Co.  585 

V.  Woodworth  603 

Spring's  Appeal  460 

Springe  r.  Berry  683 

Springer  v.  Arundel  310  a,  652 

V.  Kroeschell  137 

V.  Springer  126,  805 

V.  Walters  232 

Springett  v.  Dashwood  821,  900 

Springlield  H.  Ass'n  v.  Roll  212 

Sproule  V.  Bouch  545 

Spurgeon  v.  Collier  828 

Spurr  V.  Scoville  71,  72 

Spurrier  v.  Hancock  122 

Spurway  v.  Glynn  571 

Squire  v.  Dean  665 

V.  Harder  139,  162 

V.  Whitton  178,  179 

Squire's  Appeal  76,  135,  205,  200,  226 

Squires  v.  Ashford  634 

St.  Albvn  V.  Harding  188 

St.  Aubin  v.  St.  Aubin  556 

St.  George  v.  Wake  213 

St.   .lames  Church  v.  Church  of  the 

Eeiieemer  207 

St.  John  V.  St.  John  214,  672,  673 

V.  Turner  869 

St.  Johnsbury  v.  Morrill  828 

St.  John's  Church,  In  re  725 

St.  John's  College  v.  State  742 

St.  Louis  v.  Priest  779 

St.  Louis  Union  Society  v.  Mitchell       828 
St.  Mary's  Church  v.  Stockton  797 

St.  Piitrlck's  Church  v.  Dalv  127 

St.  Paul  V.  Dudley  '  347 

St.  Paul  Trust  Co',  v.  Kittson  454 

St.  Paul's  Church  v.  Att.-Gen.  700,  736,  738 
St.  Stephens,  Ee  727 

Staats  V.  Bergen  195 

V.  Bingen  S47 

Stacey  v.  Elph  261,  267, 268,  269,  270,  271, 

273 

Stackhouse  v.  Barnston   228,  229,  851,  872 

Stackpole  v.  Arnold  226 

V.  Beaumont  512,  513,  514,  515,  635,  636 

V.  Daveron  867,  872 

V.  Howell  272 

V.  Stackpole  471,  472,  900,  912 

Stafford  V.  Buckley  765 

V.  Stafford  851,  870 

V.  Van  Renselaer  232 

Stafford  Charities,  In  re  733 

Stagg  V.  Beekman  555 

Stahlschmidt  v.  Lett  481 

Staines  v.  Burton  736 

V.  Morris  786 

Stainton  v.  Carson  Co.  185 

Stair  V.  Macgill  550 


Stall  V.  Cincinnati  137 

Stallings  v.  Foreman  195,  205 

Stainbaugh's  Estate  462 

Stamford,  In  re  277,  290 

V.  Hobart  359 

Stamp  V.  Cooke  257 

Stamper  v.  Barker  34 

V.  Millar  414 

Standard  Oil  Co.  v.  Hawkins  828 

Standing  v.  Bowring  99 

Standish  v.  Babcock  832 

Stanes  v.  Parker  902 

Staiiger,  Re  248 

Stanford  v.  Mann  166,  206 

r.  Marshall  657,  662,  667 

V.  Roberts  477 

Stanhope  v.  Toppe  187 

Staniar  v.  Evans  .902 

Staniforth  v.  Staniforth  578 

Stanlej'  v.  Branuon  143 

V.  Colt  121,  737 

V.  Jackman  369 

V.  Leigh  364,  377 

V.  Lennard  305,  359 

V.  Stanley  359,  578 

Stanley's  Appeal  459,  851 

Stansell  v.  Roberts  238 

Stanton  V.  Hall  388,  626,  647,  648,  649 

V.  King  526 

V.  Kirsch  677 

Stan  wood  v.  Stanwood  639,  640 

Staples  V.  Hawes  386 

Stapleton  r.  Langstaffe  610 

V.  Stapleton  96,  185,  373 

Starbuck  v.  Farmers'  Loan  Ass'n  103 

Stark  V.  Canady  126 

V.  Olsen  223 

Stark's  Estate  457 

Starke  v.  Starke  643,  863 

Starkey  v.  Brooks  151,  154 

V.  Fox  869 

Starkie,  Ex  parte  617 

Starnes  v.  Hill  358 

Starr «?.  Ellis  347 

V.  Starr  75,  76 

V.  Wright  33 

State  V.  Adams  742 

V.  Ausmus  700 

V.  Bevers  828 

V.  Boston  &c.  Ry.  Co.  756 

V.  Brown  263 

V.  Br3-ce  30 

V.  Cincinnati  766,  795 

V.  Commercial  Bank  757 

V.  Commissioners  223 

V.  Digges  843 

V.  Fav  847 

V.  Gerard  699,  731,  738,  748 

V.  Griffith  276  a,  732 

V.  Guilford  404,  415,  417,  418 

V.  Hamilton  Countv  Com'rs    200,  607 

V.  Hearst                 '  262 

V.  Hollingworth  550 

V.  Holloway  171 

V.  Howarth  471 

V.  Hunt  277 

V.  Kock  348 

V.  Krebs  628 

V.  Lord  413 


INDEX   TO   CASES   CITED. 
[ReferenceB  aro  to  aectiona.] 


CXXXl 


State  V.  Macalester 

774 

Stephenson  v.  Ileatbcote 

566 

r.  Mayor  of  Mobile 

44 

V.  January 

782 

V.  McGowen 

700,  748 

V.  Stephenson 

918 

V.  Mexican  Gulf  Ky. 

757,  759 

r.  Taylor 

171 

V.  Midland  State  Bank 

122 

Stephenso'n's  Estate 

918 

V.  Nethcrton                         476 

a,  815  a 

Sterling  v.  Sterling 

672 

V.  Nicols 

262 

Sterrett's  Appeal 

416 

418,  421 

V.  Northern  Railway 

759 

Stevens  i-.  Austen 

340, 

495,  770 

V.  I'aiip 

184 

I'.  IJagwell 

29,  09 

V.  I'latt 

91G 

V.  Ikals 

640 

V.  I'rewett 

694,  748 

r.  IJell 

585,  593 

V.  Keal  Estate  Bank 

588 

V.  buffalo  &  New  York  Ry. 

709 

V.  Kei;;art 

6;52 

V.  Detliick 

578 

V.  Hobcrtson 

639 

V.  Earles 

602 

V.  Koeper 

452 

V.  Ely 

160 

V.  Rush 

47 

V.  Gavlord 

266 

V.  Simpson 

456 

V.  Greg^'                       5G2,  568, 

569,  570 

V.  Somerville,  &c.  Railway 

759 

V.  Melcher              477, 

552,  915  a,  917 

V.  Standard  Oil  Co. 

21,  801 

V.  Olive 

672,  073 

V.  Stebbins 

44 

V.  Savage 

636 

V.  To! an 

892 

V.  South  Devon  R.  Co. 

478 

State  Bank  v.  Campbell 

239 

r.  Stevens 

144,  438 

I'.  Marsh 

918 

V.  Trevor-Garrick 

071 

State  Nat.  Bank  r.  Thomas  Manuf.  Co.  44 
State  of  Maryland    v.   Bank  of 

Maryland  31,  588 

States  V.  Rives  757 

Steacy  v.  Rice  653 

Stead  V.  Clay  608 

V.  CuUey  637 

V.  Nelson  654,  658 

Stearnes  v.  Hubbard  84,  85 

Stearns  v.  Brown  463 

1).  Eraleigh  274,  277 

V.  Mathews  676 

V.  I'almer  17,  302,  312,  320,  328 

Stebbins  v.  Eddy  174 

V.  Morris  120 

Steel  V.  Cobham  818 

V.  Steel  647,  048 

Steel  Edge  S.  &  R.  Co.  v.  Manchester 

S.  Bank  593 

Steele  i-.  Kinkle  107,  228 

V.  Levisay  794 

V.  Steele  559,  907 

V.  Wallar  90 

V.  Worthington  165 

Steere  v.  Steere  20,  76,  79,  82,  83, 

120,  133,  139 

Stehman'a  Appeal  918 

Steib  r.  Whitehead  815  a,  827  n 

Steinberger  t'.  Potter  304 

Steiiihardt  v.  Cunningham  79 

Steiiimiui  v.  Ewing  080 

Steinmetz  v.  Ilaltkin  045 

Stell's  Appeal  415,  421 

Stent  v.Baillis  122 

Stephen  i'.  Swann  55 

Stephens,  In  re  308,  558 

V.  Hateman  183,  187 

V.  Green  438 

V.  Hotham  780 

V.  James  388,  555 

V.  Lawrv  612,  615 

V.  StepHens  379 

V.  Trueman  111,  367 

V.  Veiiabhs  438 

V.  Yaiulle  918 

Stephenson  i'.  Hayward  585 


V.  Wilson  126 

Stevenson,  In  matter  of  602  n 

V.  Agry  585 

V.  Brown  627 

V.  Crapnell  79, 102 

V.  Kyle  206,  828 

V.  Maxwell  918 

V.  Phillips  918 

Stephenson's  Appeal  277 

Estate  918 

Stewart's  Estate  547 

Stewart,  In  re  275 

V.  Ball  677 

V.  Brown  126,  132 

V.  Dailey  105 

V.  Fellows  195 

V.  Hall  593 

V.  Hatton  234 

V.  Hubbard  192 

r.  liflehart  165 

V.  Ives  232,  339 

V.  Jenkins  086 

V.  Kirkland  68,  438 

i\  McMinn  910 

V.  Noble  600 

V.  Parnell  460 

V.  Pettus  343,  414 

t'.  Sanderson  407 

V.  Stewart  185,  608 

Stewart's  Appeal  043 

Stewart's  Estate  863 

Stickland  v.  Aldridge  84.  90.  93,  216 

Sticknev  v.  Sewell  297,  453,  457,  461 

Sticknov's  Will,/nre  382 

Stiffle  f".  Everitt  626 

Stikeman  r.  Dawson  53 

Stile  r.  Griffin  232 

r.  Thompson  496 

Stileman  v.  Ashdown         54,  145,  146,  149 

Still  V.  Ruly  49 

V.  Spear  386  a 

Stillwoll  f.  Leavy  863 

r.  Wilkinson  187 

Stimpson  r.  Fries  602  h,  602  na 

Stine  V.  Wilkson  602  p,  602  r,  782 

Stiner  r.  Stiuer  172 


CXXXll 


INDEX   TO   CASES   CITED. 


[References  are  to  sections.] 


Stivers  «.  Gardner 
Stock  V.  Moyse 

17.  Viiiing 
Stockbricige  v.  Stockbridge 
Stockcn  V.  Dawsoii 

V.  Stocken 
Stocker  v.  Ilutter 

V.  Whitlock 
Stockett  V.  Ryan 
Stockley  v.  Stockley 
Stocks  v.  Dobsoii 
Stockton  V.  Anderson 

V.  Ford 
Stoddart  v.  Allen 
Stoddcr  V.  Hoffmann 
Stogden  v.  Lee 
Stoke's  Appeal 
Stoker  V.  Yelby 
Stokes  Trusts,  In  re 
Stokes  V.  Cheek 

V.  Payne 

V.  Terrell 
Stone  V.  Bishop 

V.  Clay 

V.  Denny 

V.  Framingham 

V.  Godfrey  185, 

V.  Grantham 

V.  Gritiin 

V.  Hackett 

V.  Hammell 

V.  Hinton 

V.  Keyes 

V.  Lidderdale 

V.  Perkins 

V.  Stone 

V.  Theed 

V.  Welling 

V.  Westcott 
Stone,  Petitioner 
Stoner  v.  Commonwealth 
Stong's  Estate 
Stonor  V.  Curwen 
Stoolfoos  V.  Jenkins 
Storrs  V.  Barker 

V.  Ben  how 
Storry  v.  Walsh  802, 

Story  V.  Gape 

V,  Palmer 

I'.  Winsor 
Story's  University  Gift 
Stouffer  I'.  Clagett 

V.  Holeman 
Stoup  V.  Stoup 
Stout  V.  Betts 

V.  Highbee 

V.  Levan 

V.  Philippi  Manuf.  Co. 
Stover  V.  Flack 
Stow  V.  Kimball 
Stowe  V.  Bowen 
Strafford  v.  Powell 
Strain  v.  Walton 
Strange  v.  Fooks 

V.  Smith 
Stratheden  and  Campbell,  In  : 
Strathmore  v.  Bo  we 
Stratton  v.  Dialogue 

V.  Grimes 


114 

Stratton  v.  Physio-Medical  College 

729,  894 

122 

Strauss  v.  Goldsmid 

699,  702 

903  a 

Strauss's  Appeal 

232 

309,  766 

Straut's  Estate 

861 

904,  906 

Stretch  v.  Watkins 

615,  616 

612 

17.  Gowdry 

918 

891 

Stretton  v.  Ashmall 

457 

660,  685 

Strickland  v.  Weldon 

732 

104 

Striker  v.  Mott 

305 

185 

Strimpfler  v.  Roberts 

126, 

137, 

141,  805 

438 

Stringer  v.  Harper 

918 

875 

Stringham  v.  Brown 

602  ee 

202 

Strode  v.  Russell 

336 

593,  597 

Strong  V.  Brewer 

546 

92 

V.  Carrier 

591 

671 

V.  Glasgow 

76 

320 

V.  Gordon 

142 

330 

V.  Ingraham 

571 

286 

17.  Messinger 

126 

119 

V.  Perkins 

93 

208 

V.  Skinner 

590,  591 

467 

17.  Smith 

642 

99 

t7.  Weir 

104 

457 

V.  Willis 

268 

172,  173 

Strong's  Appeal 

699 

735,  743 

Strother  v.  Law 

602  n 

433,  863,  867 

Stroud  V.  Burnett 

562,  566 

590 

V.  Grozer 

671 

240,  748 

17.  Gwyer 

430,  551 

98,  204,  338 

17.  Norman 

511a 

863 

Stroughill  V.  Anstey 

597, 

768, 

783,  785, 

786  a 

795,  797 

,800 

801 

810,  812 

602  66 

17.  Gulliver 

208 

69 

Stroup  17.  Stroup 

324 

43 

Stuart,  In  re 

460,  848 

109,  110,  147 

17.  Bruere 

550 

533 

V.  Bute 

603 

221 

17.  Carson 

562 

555,  827  a 

17.  Easton 

694,  712 

920 

17.  Kirkwall 

657 

658,  662 

642 

V.  Kissam             195 

,428 

647 

648,  654 

465 

V.  Stuart 

539 

361,  369,  371 

Stubbs  V.  Gargan 

630 

170,  849 

V.  Roth 

196 

184 

17.  Sargon            112, 

159, 

253 

712.  715 

385 

Stucky  17.  Stucky 

1.32 

803,  805,  811 

Studholme  v.  Hodgson 

522.  903  a 

260,  869 

Stulz  Trusts,  In  re 

388,  555 

277,  520 

Stump  17.  Gaby 

199, 

202 

227,  852 

219,  221 

Sturgeon  17.  Stevens 

104 

735 

Sturges  V.  Dimsdale 

573 

455 

V.  Knapp 

280,  749 

232 

Sturgis  17.  Champneys 

626, 

629, 

632,  633, 

299 

634 

277 

V.  Corp 

655,  670 

594 

17.  Morse 

863 

865,  872 

640 

Sturt  17.  Mellish 

17 

223 

Sturtevant  i7.  Jaques 

157 

158 

159,  814 

134   142 

Stuyvesant,  In  re 

283 

127 

V.  Hall 

241 

416 

Styan,  In  re 

438 

360 

StVer  17.  Freas 

783 

237 

Styles  17.  Gny    262.  419, 

424, 

440, 

453,  870 

851 

Suarez  v.  De  Mnntigny 

790 

517,  519 

Succession  of  Wilder 

34 

re             705 

Sudeley,  In  re 

248, 

498,  506 

213 

Sugden  v.  Crossland 

274,  427 

126,  127 

Sugg  V.  Tillman 

591 

511,  514 

Suir  Island  Charity  School,  In  re 

737 

INDEX   TO   CASES   CITED. 
[References  &ro  to  Bections.] 


Sullivan  v.  Chambers  299 

t'.  Latimer  277 

V.  rortlaiul  U.  Co.  80-2 

V.  Sullivan  133 

Summers  v.  Moore  I'J.J 

Sumner  i'.  Marcy  72 

Sunirall  v.  Ciialfin  774 

Sunderland  v.  Sunderland  141,  147 

Supple  V.  Lawson  250 

Sustjuehanna  Bridge  Co.  v.   General 

Ins.  Co.  754 

Susquehanna  Canal  Co.  v.  Bonham        757 

Sussex  V.  Worth  528 

SutcliiTe  v.  Cole  152 

Sutherland  v.  Brush  421 

V.  Cook  449,  451,  551 

Sutphen  r.  Fowler  780 

Sutton  V.  Aiken  520 

V.  Oadock  541 

V.  llanford  590 

V.  Jewke  515 

V.  Jones  199,  432,  5.30 

V.  My  rick  917 

Sutton  V.  Sharp  464,  408 

Sutton  Colelield's  Case  S.'iO 

Suydam  v.  Martin  217,  591 

Swain,  In  re  8G3 

Swaine  v.  Ferine  554 

Swale  I'.  Swale  413,  818 

Swallow  V.  Binns  580 

Swan,  In  re  630 

V.  Frick  97 

V.  Ligan  220,  541 

Swarez  v.  Pumpelly  287 

Swarr's  Appeal  733 

Swartswalter's  Account  918 

Swartwout  v.  Burr  50 

Swartz  V.  Swartz  200 

Swasey  v.  Amer.  Bible  Soc.  699,  700,  700, 

748 

V.  Emerson  223 

V.  Little  V9G 

Swearingin  v.  Slicer  592 

Swedesborough  Church  v.  Shivers         733 

Sweeney  v.  Sampson  694,  700,  748 

V.  Smith  G80 

V.  Sparling  127 

V.  Warren  253 

Sweet  V.  Jacocks  206 

V.  Southcote  222 

Sweetapple  v.  Bindon  323,  324,  300 

Sweeting  v.  Sweeting  327 

Sweezy  r.  Thaj'er  611 

Sweigart  v.  Berks  556,  783 

Swift,  Ex  parte  613,  618 

V. 920 

V.  Davis  147 

V.  Gregson  256 

V.  Smith  803 

Swinburne  i'.  Swinburne  137,  142 

Swindall  r.  Swindall  471 

Swinfen  v.  Swinfen  348,  443,  440 

Swink  V.  Snodgrass  225 

Swinnock  v.  Crisp  618 

Swinton  v.  Egleston  160 

Swissholm's  Appeal  204,  209 

Switzer  v.  Skiles  84,  401 

Swover's  Appeal  453,  590,  786  a 

Syctie  V.  Kline  126 


Syester  v.  Brewer 
Sykes  v.  Hastings 

t'.  Sheard 
Sykes's  Trust 
Sylvester  v.  Jarman 

V.  Wilson 
Symes  r'.  Hughes 

V.  Symes 
Symm's  (Jase 
S Vinson  V.  Turner 
Synge  v.  Hales 

V.  Synge 
Synnot  v.  Simpson 
Sypher  v.  McHenry 
Syracuse  S.  Bank  v.  Porter 


T. 


CXXXlll 


864 

432 

493,  778,  784 

657,  058 

337 

305 

214 

378 

724 

303,  305,  309 

357,  300,  377 

122 

593 

197 

82,  248 


Tabb  V.  Archer 

34 

r.  I5aird 

299,  303 

Tahele  v.  Tabele 

602/ 

Tuber  v.  Wijletts 

248 

Tabor  v.  Brooks 

511 

V.  Grover 

13 

Taft  V.  Dimond 

79 

V.  Providence,  &c.  R.  Co. 

545 

V.  Stow 

79 

Taggart  v.  Baldwin 

640 

V.  Taggart 

364 

Taintor  v.  Clark       259,  499,  500,  700,  748, 

765,  921 

Tait  V.  Jenkins  819 

I".  Lathbury  766 

V.  Northwick  600 

Taite  v.  Swinslead  498 

Talbot  r.  Bowen  84 

r.  Calvert  652 

V.  Cook  438 

V.  Dennis  640 

V.  Field  ^11  c 

V.  Mansfield  822,  823,  826 

V.  Marshfield  474,  508 

I'.  Radnor  272,  476  a,  922,  928 

V.  Scott  818 

V.  Staniforth  188 

Talbott  V.  Barber  79,  863 

Taliaferro  v.  Minor  918 

V.  Taliaferro  126,  133,  135 

Tallev  V.  Starke  610 

Tally  y.  Thompson  676 

Tanaux  i'.  Ball  918 

Taner  r.  Ivie  800 

Taney  v.  I'ahnlev  358 

Tankard  i-.  Tankard  171,  215 

Tann  !'.  Tann  903  a 

Tanner  r.  Dancey  892 

V.  Elworthy  129,  196,  538 

V.  Hicks  232 

V.  Skinner  98 

Tanney  r.  Tanney  109 

Tanqueray-Willaume,  In  re  570 

Taplev  I'.'Biittertield  814 

Tajipan  v.  Deblois     694,  705,  724,  730,  748 

Tappenden  r.  Burgess  587 

Tarback  v.  Marbury  590 

Tarbdx  v.  Grant  103 

Tardiff  i".  Hobinson  635 

Targus  v.  Puget  364 


CXXXIV 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Tarleton  v.  Hornby 

V.  Vietes 
Tarlton  v.  Gilsey 
Tarpley  v.  l\)aze 
Tarr  r.  Williams 
Tarrant  v.  Backus 
Tarrant's  Trust,  Jn  re 
Tarsley's  Trust,  In  re 
Tarver  v.  Tarver 
Tasburgh's  Case 
Tasker  v.  Small 

V.  Tasker 
Tassey's  Trust 
Taster  v.  Marriott 
Tatam  v.  Williams 
Tate  I'.  Connor 

V.  Leithhead 
Tatge  V.  Tatge 
Tatham  v.  Drummond 

V.  Vernon 
Tatlock  V.  Smitb 
Tator  V.  Tator 
Taussig  V.  Keel 
Tavenner  v.  Barrett 

V.  Robinson 
Taylor,  Ex  parte 

In  re 

V.  Allen 

V.  Alloway 

V.  Alston 

V.  Ashton 

V.  Atkins 

V.  Austen 

t'.  Bacon 


848,  875 

84 

411 

126 

655,  660 

277,  382 

511  c 

648 

182 

630 

122,  874 

32 

652 

196 

869 

863 

87,  105 

226 

668,  709 

357,  3r,9 

585 

380 

511  6,  528 

877 

921 

587,  848 

727,  895,  904 

816,  818 

232 

144,  147 

171 

602 /> 

633 

117 

V.  Benham    64,  131,  336,  415,  441,  602 
m,  765,  855 
V.  Biddal  379 

V.  Blakelock  828 

y.  Boardman  215 

V.  Bond  547 

V.  Buttrick  104 

r.  Clark  550,  551 

V.  Crompton  871 

V.  Davis  437a 

V.  Dickinson  413 

V.  Galloway  769 

V.  George  112 

V.  Glanville    280,  476a,  667,  894,  901, 
922.  928 
V.  Gooche  865 

V.  Harwell  815  a 

V.  Hawkins  811 

V.  Haygarth  157,  327,  434,  437 

V.  Henrv  99 

V.  Hibbert  550,  551 

V.  Holmes  862 

V.  Hopkins  402 

V.  Huber  920 

V.  Hunter  232,  237,  239 

V.  James  ]09,  143 

V.  Keep  83^  732 

V.  Kelly  127 

V.  Kemp  466 

V.  King  17,  328,  602  i,  602  an 

V.  Lucas  160 

V.  Luther  226 

V.  McKinney  232 

V.  Mahoney  276 

V.  Meads  656 


Taylor  v.  Miles 
V.  Millington 
V.  Mitchell 
V.  Morris 
V.  Phillips 
V.  Plumer 
V.  Pownal 
V.  Pugh 
V.  Kadd 
V.  Roberts 
V.  Root 
V.  Salmon 
V.  Sheltou 
V.  Shum 
V.  Stibbert 
V.  Tabrum 


124, 133, 147 

267 

715 

499 

605 

345,  835,  837,  842 

82,  95,  122 

213 

226 

415 

892 

206,  885 

678 

536 

217,  828 

781,  848,  876,  901 


V.  Taylor  54,  109,  139,  146,  147,  162, 
194,  201,  654,  667 

V.  Weld  226 

Taylor's  Case  697 

Tayman  v.  Mitchell  171 

Teague  v.  Dendy  618 

Teakle  v.  Bailey  206 

Teall  r.  Schroder  863 

V.  Slaven  861 

Teas's  Appeal  573 

Tebbetts  v.  Tilton  126,  133 

Tebbitt  v.  Tebbitt  364 
Tebbs  V.  Carpenter  438,  440, 444, 464,  465, 
468,  471,  527,  900,  902 

Tecumseh  Nat.  Bank  v.  Russell  166 

Tee  V.  Ferris  511  a 

Teegarden  v.  Lewis  145.  166 

Teele  v.  Bishop  of  Derry  158,  701.  715, 

727,  741 

Tefft  V.  Steam  891 

Telford  v.  Barney  404,  779 

V.  Patton  92 

Teller  v.  Bishop  673 
Tempest,  Jn  re                        39,  55,  59,  277 

V.  Camoj-s  243 

Temple  v.  Hawley  34,  365 

Templeton  v.  Brown  122 

Tenant  r.  Brown  121 

Tendrill  v.  Smith  201 

Teneick  v.  Simpson  38,  231 

Tennant  v.  Stoney  593,  649 

V.  Tennant  245 

Tennent  v.  Tennent  390 

Tenny  v.  Jones  355 

V.  Simpson  133 

Terhune  11.  Colton  576 

Terre  v.  Am.  Board  499.  510 

Terrell  v.  Matthews  416,  423 

Terrett  v.  Crombie  218,  222 

V.  Taylor  743 

Terry  v.  Brunson  633,  639 

V.  Collier  298 

t'.  Hopkins  213 

V.  Laible  768 

V.  Terry       453,  476,  605,  610,  621,  915 

Tessier  v.  Wvse  562 

Tetley  v.  Griffith  658 

Thacker  v.  Kay  254 

Thackery  v.  Sampson  380 

Thallheimer  r.  Brinckerhoff  68 

Thatcher  v.  Candee  274,  921 

V.  Churchill  86 

V.  Corder  268 


INDEX   TO   CASES   CITED. 
[References  are  to  aections.] 


cxxxv 


Thatcher  v.  Omans                    298,  2'J'J,  .102 

Thompson  v.  Marley 

128, 

163,  106 

Tliavcr  V.  Gould                                          84'J 

V.  Meek 

270 

v.  Ttiaver                                            511  /j 

I'.  Murphy 

827  a 

V.  Wellington                   88,  90,  93,  272 

V.  Murray 

48 

The  Skinners'  Case                                   G'J3 

V.  Korris 

251 

TheuhriilKe  v.  Killjurn                                ."tC'J 

V.  I'arker 

128 

Tliellus(Mi  r.  Woodford              379,  394,  7.J7 

r.  (iuiinly 

93 

Theological  Kd.  Soc.  v.  Att.  Gei).           739 

V.  Shakespear 

710 

Thetford  School  093,  725 

Tliicknesse  v.  Vernon  130 

Thiehaud  v.  Dufour  201  n 
Third  Nat.  Haiiku.  Stillwater  Gas  Co.    8-_'8 

Thomas  v.  Hciiiiett  G<15 

V.  Hrinslield  8(i3 

V.  liownian  4^(3 

V.  Ciiurchill  79 

V.  Chicago  143,  144 

V.  Dunning  873 

V.  Kliniaker  704,  700,  710 

V.  1m. 1  well  tUil 

V.  Cilendiuning  8(!3 

V.  Gregg  545 

V.  Migham  282 

V.  Hole  257 

V.  Jenks  586,  591,  592 

V.  Kelsoe  641 

V.  Kennedy  239,  627,  032 

V.  McCann  171,  172 

V.  McCormack  102 
V.  Merry                            75,  79,  80,  863 

V.  Oakley  871 

V.  Scruggs  404,  420 

V.  Sheppard  189,  627,  628 

V.  Standiford  137 

V.  Stone  221 
V.  Thomas                   858,  863,  871,  872 

I).  Townsend  774 

V.  Walker  126 

V.  Williams  213,  547 

Thomassen  v.  Van  Wyngaarden  437  6 

Thomnian's  Estate  448 
Thompson,  Jn  re               622,  828,  902,  917 

V.  Rallard  248 

V.  Hoaseley  654 

V.  Blackstone  770,  787 

V.  IJlair  229,  230,  8(i3 

V.  IJranch  134 

V.  Brown  405 

V.  Conant  299 

V.  Corbv  099 

V.  Ellsworth  r..!i) 

V.  Finch  402,  418,  850 

V.  Fisher  359 

V.  Ford  330 

1).  Gaillord  765 

V.  Galloupe  518 

V.  Garwood  511  c 

V.  Gibson  299 

V.  Grant  337 

V.  Griffin  612 

V.  Ilartline  195 

V.  Harrison  851 

I'.  Ilouze  602  </7 

V.  Judge  2(V2 

V.  Leach  259,  270 

V.  l.cdiard  750 

V.  McDonald  918 

V.  McGaw  869 

V.  McKissick  113,  253 


V.  Simpson  361,  833,  800,  807 

V.  Sjiiers  438 

V.  Thomas  66 

V.  Thom[)son       75,  109,  134,  143,  146, 

100,  245,  275,  324,  520,  0!)9,  700, 

712,  7.i2 

V.  Tryon  358 

V.  Tucker-Osborn  122,  367 

V.  Wheatley  195 

Thompson's  Appeal  127,  128 

Thomson  i'.  Clydesdale  Bank  122 

V.  Eastwood  433 

V.  I'eake  913 

Thong  I'.  Bedford  317 

Thorby  r.  Yates        654,  607,  889,  900,  901 

Thorn  v.  Newman  347 

Thornber  v.  Wilson  701 

Thornborough  v.  Baker  226 

Thorndike  r.  Hunt  828 

V.  Loring  393,  737 

Thorne  v.  Cann  347 

V.  Heard  861 

Thorner  i'.  Thorner  134 

Thornhill  r.  Gilmer  602  i 

Thornton  v.  Bovden  782 

V.  Ellis       '  450,  451 

V.  Gilman  245 

V.  Henry  84 

V.  Howe  700 

V.  Irwin  602  v 

V.  Jarvin  199 

V.  Knox  235,  237,  239 

V.  Ogden  915  a 

V.  Stokill  842 

V.  Wilson  703 

V.  Winston  270 

Thorp,  In  re             429,  462,  463,  464,  468 

V.  Fleming  737 

V.  Jackson  878 

V.  ]\IcCallum  195, 198,  430 

V.  Owen  117 

Thorpe  r.  Iloldsworth  554 

V.  Owen  86,  96,  118,  119 

Thouron's  I'^state  917 

Thrasher  v.  Ballard  254,  511  c 

Tlirockmorton  v.  Throckmorton  145 

Thrupji  V.  Collett  715 

V.  Harmon  605 

Thruxton  v.  Att'v-Gen.  75,  50!l  b 

Thurston  r.  Dickinson  552 

V.  Essington  620 

V.  Prentiss  602/".  602/) 

V.  Thurston  552,  610 

Thurston,  Petitioner  104 

Thvnn  r.  Thvnn  181,  182,  226 

Tibbits  V.  Tibbits  112,  113,  110,  123 

Tichenor  r.  Brewer  720 

Tidd  V.  Lister    329,  520,  540,  626,  634,  818 

Tiernan  v.  Bean  232,  238 

V.  Poor  97 

V.  Kescanicre  855 


CXXXVl 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Tiernan  v.  Roland 

231 

V.  Thurman 

237 

239 

Tierney  v.  Moody 

305 

V.  Wood 

83 

105 

TifEany  v.  Clark 

197 

205 

V.  Munroe 

549 

V.  Tiffany 

142 

Tiffin  V.  Longman 

258 

Tilbury  v.  Barbut 

380 

Tilden  v.  Green 

729 

Tilford  V.  Torrey 

127 

Tillaux  V.  Tiilaux 

162 

Tilley  v.  Bridges 

871 

Tillingbast  v.  Bradford 

386  a 

555 

V.  Champlin 

414 

V.  Coggeshall  324,  361,  476  a,  928 

Tillison  i'.  Ewing  8G1 

Tillott,  Jn  re  177 

Tilt,  Jie  131 

Tilton  V.  Hunter  241 

V.  Tilton  84,  186 

Timbers  v.  Katz  639 

Timson  v.  Eamsbottom  438 

Tindall  v.  Harkinson  175 

Tinnen  v.  McCane  863 

Tingier  v.  Cbamberlin  382 

Tinsley  i;.  Tinsley  126 

Tippetts  V.  Walker  757 

Tipping  V.  Power  892 

Tipton  V.  Powell  151,  165 

Titcbenell  v.  Jackson  82 

Titcomb  v.  Currier  78G  a 

V.  Morrill  81,  1G2 

Titley  v.  Durant  672 
V.  Wolstenholme      294,  339,  340,  494, 

495 

Tobv  V.  McAllister  232,  237 

Todd  V.  Buckman  592,  602 

V.  Lee  660 

V.  Moore  205 

V.  Munson  79 

V.  Sawver  386 

V.  Todd  562 

V.  Wilson  901,  904 

Toder  v.  Sansom  395 

Tokerr.  Toker  98,104 

Tolar  V.  Tolar  98,  104, 109,  161 

Tolleraache  v.  Coventry  373 

Toller  V.  Carteret  71 

Tolles  V.  Wood  815  a 

Tolleson  v.  Blackstock  82 

Toman  v.  Dunlop  523 

Tombs  V.  Rock  573 

Tomkvns  v.  Ladbroke  635 

Tomlin  v.  Hatfield  413 

Tomlinson  v.  Dighton  511  b,  657 

V.  Steers  347 

Tompkins  v.  Mitchell  136,  238,  337 

V.  Powell  218 

V.  Tompkins  569 

V.  Wheeler  585,  593 

V.  Willan  315 

Tompkyn  v.  Sandys  248 

Tongue  v.  Nutwell  380 

Tophara  v.  Duke  of  Portland        511,  511  a 

Toppan  V.  Ricomio  816 

Torbett  v.  Twining  649 

Toronto  G.  T.  Co.  v.  Chicago,  &c.,  R. 

Co.  828, 878 


Torrence  v.  Shedd  126 

Torrey  v.  Bank  of  Orleans  129,  206 

V.  Buck  171,  180 

V.  Deavitt  243 

Totham  v.  Vernon  100 

Tottenham,  Jn  re  196 

Tourney  v.  Sinclair  673 

Tourviile  v.  Naish  221 

Tower  v.  Bank  of  River  Raisin  588 

Towers  v.  Hagner  664,  665 

V.  Moore  226 

Towle  V.  Ewing  511  c 

V.  Mack  910 

V.  Nesmith  699 

V.  Swasey  899 

V.  Wadsworth  126,  127 

Towler  v.  Towler  248 

Towles  V.  Owsley  658 

Towne  v.  Ammidown        262,  417,  420,  426 

Townend  v.  Townend  429,  430,  464 

Townley  i-.  Bidwell  704 

V.  Bond  267 

V.  Sherborne      334,  412,  415,  416,  417, 

419 

Townsend,  Ex  parte  402,  405 

Townsend,  In  re  511  a 

V.  Barber  422 

V.  Cams  701 

V.  Early  388 

V.  Fenton  226 

V.  Townsend  472 

1'.  Wilson  344,  414,  492,  505 

V.  Windham  68,  665 

Townshend  v.  Brooke  891,  894 

V.  Champenown  349 

V.  Grommer  351 

V.  Stangroom  176,  185,  226 

V.  Townshend  855,  861,  863,  865 

V.  Westacott  149 

Townson  v.  Tickell  259,  270,  273 

Tracv  v.  Gravois  Rd.  Co.  910 

V.  Keith  680 

V.  Sackett  189 

V.  Strong  556 

V.  Tracv  570 

Trafford  v.  Boehm   380,  455,  460,  462,  848, 

877 
V.  Trafford  373 

V.  Wilkinson  229 

Tramp's  Case  486 

Trans.  University  v.  Clay  466 

Trapnal  v.  Brown  85 

Trask  v.  Donaghue  259,  262 

Travell  v.  Danvers  275 

Travers  v.  Townshend  901 

Travinger  v.  McBurney  214 

Travis  v.  Illingworth  290,  291 

Treadwell  v.  Cordis  499 

V.  Salisbury  Mills  757 

Treat  v.  I'eck  768 

Treat's  App.  38,  720,  724,  748 

Treats  v.  Stanton  330 

Tregonwell  v.  Sydenham        151,  152,  160, 
380,  385,  390,  396 
Trembles  v.  Harrison  55 

Tremper  v.  Burton  143,  147 

Trench  ».  Harrison  126,  127,  138,  842 

Trenholme,  Ex  parte  126 

Trent  v.  Hauning  312 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


CIXXVll 


Trent  v.  Harding  309 

V.  Trent  509 

Trentun  banking  Co.  v.  Woodruff  G47 

Trepliageu  v.  Burt  127 

Trevunion  v.  Morse  219 

V.  Vivian  622 

Trevele  d.  Coke  bM 
Trevelyan  v.  Charter                204,  229,  230 

Treves  v.  Townshend  404,  408 
Trevor  v.  Trevor      347,  361,  369,  371,  390, 

828,  834 
Trexler  v.  Miller  182 
Trezavant  v.  Howard  04 
Tribble  v.  Oldham  235 
Trickey  v.  Trickey  397 
Trim's  Estate  699 
Triuilestown  v.  Colt  584 
V.  Hammil  408 
Trimmer  v.  Bayne  150 
Trimmer  Church  v.  Watson  559 
Trinidad  v.  Milwaukee,  &c.  Co.  223 
Trinity  College  v.  Brown  326 
Triplelt  i'.  Jarason  918 
Tripp  V.  Frazier  160,  575 
Tritt  V.  Colwell  640 
V.  Crotzer  75,  77,  83 
Trollop  V.  Linton  34,  511  c 
Trost  V.  Dingier  189 
Trot  V.  Vernon                           112,  569,  570 
V.  Dawson  907 
Trotter  r.  Blocker  60,  05 
V.  Erwin  232,  234 
Trower  r.  Knightley  498 
Trov  t'.  Haskell  45 
'v.  Troy  610 
Trov,  &c.  Kailwav  v.  Kerr  757 
Trov  Citv  Bank  v.  Wilcox  24G  a 
Truebody  v.  Jacobson  232,  237 
Truell  V.  Tysson  783 
Truesdell  y.  Calloway  217 
Truett  V.  Williams  408 
Trull  V.  Bigelow  218,  222 
V.  Eastman  188 
V.  Trull  814 
Truluck  V.  People  222 
Trumbull  v.  Trumbull  358 
Trust  Co.  V.  Railroad  918 
Trustees  v.  Wright  232 
Trustees,  etc.  v.  Atlanta  437  a 
V.  Augusta  554 
V.  Chambers  748 
V.  Clay  400 
V.  Jackson  Square  Church       131,  729 
V.  Prentiss  602  n 
V.  Tufts  451 
Trustees  of  Phillips  Academy  v.  King    42 
Trustees  of  Smith's  Char.  v.  North- 
ampton 508,  724 
Trustees  of  Theol.  Sem.  v.  Kellogg        748 
Trutch  I'.  Lamprell  402 
Try  on.  In  re  270,  901 
V.  Sutton  640 
Tucker,    In  re  460 
V.  Andrews  213,  627 
V.  Bean  52 
V.  Boswell  550,  551 
V.  Burrow  144,  147 
V.  Gordon  041 
V.  Guest  680 


Tucker  v.  Horneman 

476 

a,  928 

r.  Johnson 

309 

V.  Kayess 

152 

V.  Mo'reland 

33 

r.  Nebeker 

437  a 

V.  Pliipps 

183 

V.  Seamen's  Aid  See.   40,  93,  7.30,  748 

V.  Stale  2G1  a,  464 

r.  Tucker  330,  803 

V.  Zimmerman  815  0,  873 

Tudor  V.  Samyne  653 

Tufl'nell  V.  Page  739 

Tug  Uiver  Co.  v.  Brigel  903  a 

TuUett  V.  Armstrong        646,  648,  652,  053, 

067,668,  670,  071 

V.  Tullett  005,  Oil 

TuUock  r.  Hartley  71 

Tunnard  i'.  Littell  133 

Tunno,  Uxparte  275,  282,  297 

In  re  571 

Tunstall  v.  Boothby  09 

V.  Trappes  222 

Tupper  V.  Fuller  554 

Tupple  V.  Viers  232 

Turnage  v.  Green  918 

Turnbull  v.  Gadsden  171,  174 

V.  Pomeroy  432 

Turner,  Ex  parte  240,  795,  So2 

In  re  309,  457,  848 

V.  Buck  346 

f.  Corney  402,  821,  912 

V.  Davis  6-33 

V.  Flagg  607 

V.  Framptou  476  a,  928 

V.  Harvey  177.  180,  770 

V.  Hill  ■           196 

V.  Hoole  212 

V.  Hoyle  794 

V.  Javcox  585 

V.  Johnson     602^,  602  n,  602  y,  602  66 

*.  King  171 

V.  Laird  500 

V.  Maule  279,  292,  927 

V.  Newport  556  a 

V.  Ogden  701 

V.  Pettigrew  127,  836 

V.  Russell  160 

V.  Sargent  360,  369,  375 

V.  Sawver  127 

V.  Smith  864 

V.  State  658 

V.  Turner  184,  456,  616,  619 

V.  Wardle  260 

Turner's  Case  633,  053 

Turney  r.  Williams  408 

Turnley  r.  Kelley  647 

Turpin  v.  Sanson  456 

Turquand  r.  Marshall  467 

Turvin  v.  Newcome  393 

Tusch  t'.  German  S.  Bauk  S2 

Tuthill  V.  Tracv  602  66 

Tutt  c.  R.  R.  C'o.  437  a 

Tuttle,  In  re  545 

V.  Fowler  641 

V.  Gilmore  452 

V.  Merchants'  Nat.  Bank  277,  282 

V.  Ral)inson  918 

Twaddell's  Appeal  468,  4.'>9,  914 

Tweddell  v.  Tweddell  201,  614 


cxxxvm 


INDEX   TO   CASES    CITED. 


[References  are  to  sections.] 


Tweedy  v.  Urquliart 
Twentv-Third   St.  13.  Church  v. 

ueir 
Twisden  v.  Wise 
Twisleton  v.  Thelwell 
Twitchell  v.  Drury 
Twopenu^'  v.  Peyton 
Twynue's  Case 
Twypont  v.  Warcup 
Tyars  v.  Alsop 
Tvford  V.  Tliurston 
Tyldeii  v.  Hyde  499,  501, 

Tylee  v.  Tylee 
Tyler,  /«  re 

V.  Black  173, 

V.  Deblois 

V.  Granger 

V.  Lake  348, 

V.  Herring 

V.  Mayre 

V.  Sanborn 

V.  Odd-Fellows'  Asa'n 

V.  Tyler  82,  86, 

r.Webb 
Tyree  v.  Williams 
Tyrrell  v.  Hope 

V.  Marsh 

V.  Morris 
Tyrrell's  Case 
Tyrrell's  Trusts,  In  re 
Tyrson  v.  Mattair 
Tyrwhitt  v.  Tyrwhitt 
Tyson  v.  Blake 

V.  Jackson 

V.  Latrobe 

V.  Mickle 

V.  Passmore 
Tyte  V.  Wiilia 


277,  296 

Cor- 

729 

639,  64U 

747,  892 
247  a 

119,  555 
590 
174 
203 
926 

787,  803 
818 
384 

173,  184 

2U3 

437  a 

648,  649 

764,  779 
277 
206 
607 

122,  212 
222 
780 

310,  648 
784 

225,  8U9 

161,  301 
401 
676 

347,  348 
546 
574 
768 

780,  784 

38,  231 

380 


u. 


Udal  V.  Udal 
Udell  V   Kenny 
Uhrich  v.  Beek 
Ulrici  V.  Boeckelcr 
Ulman  v.  Barnard 
Ulster  Buildinsj  Co.,  In  re 
Unckles  r.  Colgate 
Underbill  v.  Horwood 

V.  Morgan 
Underwood  v. 
Bank 

V.  Curtis 

V.  Hatton 


511c 

628,  630,  645 

221 

837 

243 

122 

21 

186,  187,  192 

843 

Boston  Five  Cents  S. 

843 

382,  448 

846,  924 

V.  Stevens  417,  419,  423,  424,  444,  406, 

467,  849 

Uniacke,  In  re  259 

V.  Giles  103 

Union  Bank  v.  Baker  130 

V.  Jacobs  754,  757 

V.  Murray-Aynsley  122 

Union  Bank  of  Tennessee  v.  Ellicott      588 

Union  College  v.  Wheeler  126,  132 

Union  Life  Ins.  Co.  v.  Hanford  206 

V.  Rpaids  828 

Union  Nat.  Bank  v.  Goetz  828 

Union  Pac.  Ry.  Co.  v.  Artist  710 

Union  Stock  Yards  Bank  v.  Gillespie   206 


Unitarian  Society  v.  Woodbury  Y9,  82, 138 
United  States  v.  Addyston  Co.  21 

V.  Coffin  202 

V.  Joint  Traffic  Ass'n  21 

V.  Trans-Missouri  Freight  Ass'n       21 
V.  E.  O.  Knight  Co.  21 

V.  Vaughn  438 

U.  S.  Ins.  Co.  V.  Schriver  222 

U.  S.  Mortgage  Co.  v.  Sperry  437  a 

U.  S.  Trust  Co.  V.  Stanton  343 

Univ.  Soc.  V.  Fitch  724 

University  v.  Bank  863,  8tJ5 

V.  Fay  743 

University  College,  In  re  743 

University  College  of  London  v.  Yar- 
row 704,  738 
Updegraph  v.  Commonwealth  697 
Uphani  V.  Varuey  297,  299,  312 
V.  Wyuian  859 
Uppington  v.  Buller  202 
Upshaw  V.  Hargrove  220,  232,  239 
Upshur  r.  Briscoe  58 
Upson  V.  Badeau  407 
Urann  v.  Coates  82,  103 
Urch  V.  Walker  261,  264,  271,  401,  503,  927 
Urkett  V.  Coryell  60 
Urmry'sEx'rs  v.  Wooden  694,  699,724, 748 
Utica'ins.  Co.  v.  Lynch  471 
Utterson  v.  Maire  225 
Uvedale  v.  Patrick  276 
V.  Uvedale  747,  892 
Uzzell  V.  Mack  232 
Uzzle  V.  Wood                                      104 


Vaccaro  v.  Cicalla  910,  923 

Vachell  v.  Roberts  451 

Vail  V.  Knapp  72 

V.  Vail  305 

Valentine  v.  Bell  658 

V.  Richardt  79,  166 

V.  Valentine  918 

Vallance  v.  Miners'  Life  Ins. 
Valle  V.  Bryan 
Vallette  v.  Bennett 

V.  Tedens 
Valliant  v.  Diodmede 
Van  Amringe  v.  Peabody 
Van  Berghen  v.  Demarest 
Vanbever  v.  Vanbever 
Van  Blarcom  v.  Dager 
Van  Bokkelen  v.  Tinges 
Van  Buskirk  v.  Ins.  Co. 

V.  Van  Buskirk 
Van  Cott  V.  Prentice 
Vance  v.  E.  Lancaster  R.  Co. 

V.  Kirk 

V.  McLaughlin 

V.  Vance 
Vandebende  v.  Livingston 
Vandenberg  v.  Palmer 
Vanderbilt,  In  re 
Vanderheyden  v.  Crandall 

V.  Ma'llory 

r.  Vanderheyden 
Vanderplank  v.  King 
Vanderstegen  v,  Withara 


Co.  589 

127 

320 

206 

536 

243 

602  ee 

840 

550 

794,  873 

438 

126 

82,  104 

478 

828 

642 

929 

872,  877 

96,  165 

511 

305,  307,  523 

660 

468,  918 

376,  385,  390 

17 


INDEX   TO   CASES   CITED. 
[References  are  to  sectiooa.] 


Vander  Volgen  v.  Yates  162,  705,  710 

Vaadervoot,  Jn  re  783 

Vaiidever  v.  Ireemaa  i;i7 

Vandever's  Appeal  273,  411,  412,  415 

Van  Doreii  r.  Uldea  545 

r.  Tudd  232 

Van  Duvue  v.  Van  Duvne  115 

Van  Duzer  i'.  Van  Duzer  603, 627,  628,  631 
Vane  v.  Dungannon  511  a 

Van  Epps  v.  Van  Deusen  627,  628,  629,  (J31, 

632,  G41 

V.  Van  Epps        129,  195,  205,  206,  430 
Van  Grutten  v.  Koxwell  358 

Van  Horn  i--  Fonda  205,  262,  264,  401,  538 
Vaiihorn  r.  Harrison  312 

Van  Home  v.  Everson  680 

Van  Houten  v.  First  Reformed  Dutch 

Church  742 

Van  Kirk  v.  Skillmaa  680 

Vann  v.  Barnett  816 

Vanness  r.  Jacobs  928 

Vannoy  r.  Martin  171 

Van  Kensalaer  v.  Stafford  438 

Van  liensselaer  v.  Dunkin  652 

Van  Saudan  v.  Moore  886 

Van  Sittart  i".  Van  Sittart  654 

Van  Vechten  r.  Van  Vechten  380,  391,  619, 

620 
Van  Vronker  r.  Eastman  554 

Van  Weckie  r.  Malla  205 

Van  Winckle  i-.  Van  Houten  569,  570 


Van  Wyck,  In  re 

282, 

411,  499 

Vardon's  Trusts,  Jie 

627,  671 

Varick  v.  Briggs 

218 

V.  Edwards 

68, 

188,  803 

Varner  v.  Gunn 

858 

Varney  v.  Stevens 

554 

Varnum  r.  Meserve 

199, 

602 

m,  602/ 

Varrell  v.  Wendell 

254 

Vartie  v.  Underwood 

680 

Vattier  r.  Hinde 

218, 

219,  221 

Vaughan  r.  Barclay 

71 

V.  Buck 

451, 

547, 

634,  636 

V.  Burslem 

373 

V.  Evans 

593 

V.  Thurston 

900 

V.  Vanderslegea 

170, 

658, 

848,  849 

V.  Walker 

663 

Vaux  V.  Parke 

305,  555 

Vaux's  Estate 

511  c 

Veale's  Trusts,  In  re 

256 

Veasey  v.  Doton 

173 

Veasie  v.  Williams 

228 

Veazie  v.  Forsaith 

477 

Venables  v.  Coflnian 

725,  748 

V.  East  Ind.  Co. 

262 

V.  Fojle 

243,  402 

V.  Morris 

319 

Vermont  Marble  Co.  v. 

SmitL 

178 

Verner's  Estate 

891 

Verney  r.  Carding 

828,  837 

V.  Verney 

532,  578 

Vemon,  Ex  parte 

126 

V.  Blackerl^ 
V.  Board,  Ate. 

874 

831 

V.  Keys 

173 

V.  Morton 

685, 

591 

,  593,  602 

V.  Vawdry 

260,  844 

i>.  Vernoa 

111, 

112 

367,  611 

Vernon's  Case 

Verplanck  v.  Insurance  Co. 

Verplaiik  v.  Caines 

Verulain  v.  Bathurst 

Vesey  v.  Janisoa 

Vestal  V.  Sloan 

Vestry,  &c.  v.  Barksdale 

Vctterleia  v.  Barnes 

Vez  V.  Emery 

Vick  V.  Mc Daniel 

Vickers  v.  Cowell 

V.  Scott 
Vidal  V.  Girard        42,  43,  45, 


V.  Philadelphia 
Vigor  V.  Harwood 
Vigrass  i'.  Binfield 
Villard  v.  Chovin 
Villers  v.  Beaumont 
Villers-Wilkes,  Re 
Villiers  r.  Villiers 
Villines  v.  Nortleet 
Vincent  v.  Beshopre 

V.  Ennys 

V.  Godson 

V.  Newcombe 
Vine  V.  Kaleigh 
Viney  t*.  Abbott 
Vinton's  Appeal 
Virginia  Coal  Co.  v.  Kelly 
Vizoneau  v.  Peagram 
Volans  V.  Carr 
Volizen  V.  Yates 
Von  Hesse  v.  MacKaye 
Von  Hurter  c.  Spcrgeman 
Von  Trotha  v.  Bamberger 
Voorhees  v.  Church 

V.  Stoothorp 
Vose  V.  Grant 
Voj'le  V.  Hughes 
Vreeland  v.  Van  Horn 

I'.  Williams 
Vyse  V.  Foster 
Vyvyan  v.  Vj-vyan 


W. 


453, 


68, 


CXXXIX 


94 
207 
137 

369 

159,  711,  712 

171 

918 

873 

465,  901 

]00 

136 

550,  551,  771 

46,  240,  694, 

700,  724,  748 

694 

550 

825,  826,  827 

618 

104, 108 

727 

315,  319 

850 

511  b 

784 

260 

451 

397,  498 

104 

545 

127 

655,  656 

623 

730 

104 

433 

79 

206 

918 

242 

101,  102,  438 

849 

171 

469 

851 


Wacker  v.  Wacker 

124 

Wackerbath,  Ex  parte 

416 

V.  Powell 

404 

Wadd  V.  Hazelton 

97,  163,  2G0 

Waddingham  i'.  Loker 

82 

Waddingtiin  v.  Banks 

38,  231 

Waddy  v.  Hawkins 

918 

Wadey.  Amer.  Colonization  Soc.          743 

V.  Dick 

927 

V.  Fisher 

647,  648 

V.  Greenwood 

239 

V.  Harper              199,  209 

602  V,  602  X 

V.  I'aget 

13,  347 

V.  Petti  bone 

135 

V.  Pope 

912 

Wadham  r.  Society,  &c. 

600 

Wadsworth,  Jn  re 

275,  411 

V.  Scliisselbauer 

815  6 

t'.  Wendell 

95 

Wagenseller  v.  Prettyman 

915 

Wager  v.  Wager 

121 

cxl 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Wacrner  v.  Raird  228 

Wajf  non  v.  Pease  544,  820  a 

Wairstafle  v.  Lowerre  918 

t'.  Head  219,  220 

V.  Smith  306,  648,  655,  070 

V.  Wa.trstaffe  93,  301 

Wailes  v.  Cooper  218 

Wain  V.  Egmont  600 

Wainwright  v.  Elwell  13 

V.  Low  827  a 

V.  Waterman  249,  503,  510 

Wait  I'.  Day  1-13 

V.  Maxwell  35 

Waite  V.  Morland  627 

V.  Whorwood  835,  837 

Wake  V.  Tinkler  330,  520 

Wakefield  v.  Maffett  580 

r.  Marr  52 

Wakeman  v.  Grover  590,  592,  594,  600 

I'.  Rutland  787,  874 

Walburn  v.  Ingilby  879 

Walcott  V.  Cady  541 

Walden  v.  Karr  86,  863 

Waldo  V.  Caley  699,  705 

V.  Cummings  541 

V.  Waldo  540,  776 

Waldron  v.  Chastney  Q02p,  602  aa 

V.  McComb  768,  786  a 

V.  Sloper  438 

Wales  V.  Newbould  679 

Walev's  Trusts,  In  re  388 

Walford  v.  Gray  208 

V.  Liddel  862 

Walke  V.  Moore  253 

Walker,  In  re  466,  584,  633,  636,  904 

V.  Beal  920 

V.  Brooks  873 

17.  Brown  145 

V.  Brungard  134,  135,  199,  288,  292, 

598,  G02p,  602  v 

V.  Burngood  126 

V.  Bynam  468 

V.  Crews  96 

u.  Crowder  602  A,  612 

17.  Daly  166 

V.  Dean  327 

V.  Drury  636 

V.  Dunlop  171 

V.  Elledge  836 

r.  Fawcett  328 

V.  Locke  84,  162 

V.  Maunde  257,  509 

V.  Miller  242 

V-  Mower  383 

V-  Ogden  72 

V,  Page  456 

V.  Peck  678 

V.  Perkins  214 

V.  Preswick  239,  876 

V.  Richardson  23,  384 

V.  Sedgwick  232,  237 

17.  Sharp  920 

17.  Shore  500,  613,  771 

V.  Smalwood  474,  764,  770,  789,  795 

V.  Smvser's  Ex'rs  511 

V.  Svmonds  402,  412,  413,  419,  421, 

440.  453,  467,  821,  830, 

847,  848,  851,  875,  923 

V.  Taylor  814 


Walker  v.  Walker   226,  229,  230,  422,  507, 
508,  510,  006,  672, 


694,  748, 

803,  918 

V.  Wetherell 

618 

V.  Whiting 

121 

V.  Williams 

238 

17.  Woodward 

471 

V.  

297, 

453,  401 

Walker's  Estate 

918 

Walkerlv,  In  re 

382,  920 

Wall  17.  Bright             38 

122,  231, 

337,  342 

V.  Cockerell 

202 

17.  Stubbs 

176 

V.  Tomlinson 

639,  640 

17.  Town 

1U9 

Wall  St.  Meth.  Church  v 

.  Johnson 

277 

Wallace  i7.  Anderson 

3S6  6 

V.  Auld 

627,  645 

17.  Berdell 

104 

17.  Bowens 

144 

V.  Coster 

652,  601 

17.  Duffield 

75, 126, 

127,  128 

V.  Langston 

225 

V.  Marshall 

133 

V.  McCullough 

127,  128 

r.  Taliaferro 

639 

V.  Wainwright 

13 

t7.  Wallace 

201 

Waller  i7.  Armistead 

213,  851 

17.  Barrett 

846,  924 

17.  Catlett 

452 

17.  Childs 

701 

702,  714 

17.  Harris 

602  Jf 

t'.  Jones 

891 

17.  Teal 

770 

Wallasey  Local  Board  v 

.  Gracey 

732 

Walley  i7.  Whalley 

196 

828,  878 

Wallgrave  v.  Tebbs       77,  83,  93, 

181,  216, 

511  a 

Wallingford  v.  Heard 

856 

Wallington  v,  Taylor 

576 

Wallington's  E-^tate 

205 

Wallis  17.  Freestone 

506 

17.  Loubat 

202 

17.  Thornton 

416,  420,  602  g 

17.  Wallis 

299 

Walmesley  v.  Booth 

188 

,  202,  203 

Walraven  i7.  Lock 

75 

Walrond  v.  Walrond 

107,  471 

Walsh,  In  re 

603 

V.  Dillon 

888 

V.  Gladstone 

273 

,  291,  731 

r.  Stille 

242 

17.  Wallinger     248, 

250,  258, 

507,  5116 

1!.  Walsh 

52 

,  618,  623 

17.  Wason 

645 

Walston  V.  Smith 

143,  145 

Walter  v.  Jones 

206 

V.  Klock 

215 

17.  Logan 

501 

17.  Saunders 

633 

V.  Walter 

305 

Waltham's  Case 

169, 181 

Walton  V.  Avery 

918 

V.  Follansbee 

76 

V.  Walton 

94,  150 

,  151,  152 

Walworth  v.  Holt 

8S5 

Walwyn  i7.  Coutts 

367 

,  585,  593 

».'  Lee 

218,  219 

INDEX   TO   CASES   CITED. 
[B«(ereDce8  axe  to  Bectioas.] 


Wamble  r.  Battle 
Wamburzee  r.  Kennedy 
Wankford  v.  Waiikford 
Warburtoii  v.  Farn 

V.  Saiuiys 

r.  Warburtoa 
Ward  t\  Ainory 

V.  Arch 

r.  Armstrong 

V.  Arredoiido 

r.  Audlaiid 

r.  Bakkelea 

V.  Barrows 

V.  Brown 

V.  Butler 

V.  Davidson 

V.  Devon 

V.  Dorch 

V.  Harvey 

t'.  Hipwell 

r.  Kitchen 

V.  Laiit 

V.  Leiithal 

V.  Lewis 

V.  Mattliews 

V.  Morfran 

V.  Morrison 

V.  Screw  Co. 

V.  Smith 

V.  Spivej' 

V.  Tinkham 

V.  Trotter 

V.  Van  Bokkelen 

V.  Ward   79, 121, 131 

V.  Webber 

V.  Yates 
Ward's  Settlement 
Warden  r.  Richards 
Wardens  r.  Att.  Gen. 
Wardlaw  r.  Gray 
Wardle  i'.  Claxton 

V.  Hargreaves 
Wardour  r.  Beresford 
Wardwell  v.  McDowell 
Ware  v.  Cann 

V.  Ilorwood 

V.  Mallard 

V.  McCandlish 

V.  Polhill 

V.  Richardson 

V.  Sharp 
Wareham  v.  Brown 
Warfield,  Ex  parte 

V.  Ross 
Waring,  In  re 

V.  C.  &  D.  R.  Co. 

V.  Coventry 

V.  Darnall 

r.  Purcell 

V.  Waring 
Warland  v.  Colwell 
Warley  v.  Warley 
Warman  v.  Seaman 
Warneford  v.  Thompson 
Warner  r.  Bates 

V.  Daniels 

r.  Martin 

V.  Van  Alstyne 

r.  Whittaker 


232 

8(;3 

204 

784 

414,  505 

510,  581 

312,  G27 

i:J7 

71 

101 

22U 

783,  785 
202 

2G2,  264 
128 
501 
277 
863 

413,  733 

466 

161 

5116 

593,  594 
133 
250 
438 
610 

205,  456 
133 
454 
590 

229,  230 

142, 169, 476,  809 

183 

903  a 

455 

499 

865 

627,  628,  G39 

648,  649 
282 
183 

270,  499 
386 
187 

112,  117 

544,  545 
605 

310,  312 

660 

510 

630 

187 

34 

858 

506 

438,  439,  786  a 

556 

438,  457,  562,  672 

328 

564,  566 

161 

765 

112,  114,115,  116 

167,  171,  173,  230 

243 

232,  239 
221 


Warner  r.  Winslow 
Warrall  v.  Morlar 
Warren  v.  Adams 

V.  Clancy 

r.  Copelin 

t'.  Davies 

V.  Fenn 

V.  Haley 

V.  Howard 

V.  kiidall 

V.  Steer 

r.  Tvnan 

r.  L  iiion  Bank 

V.  Warren 

V.  Warrick 
Warriiier  v.  Rogers 
Warter  r.  Anderson 

V.  Hutchinson  306, 

Wartman  i'.  Wartman 
Wartrani  r.  Wartram 
Warwick  r.  Edwards 

f.  Hawkins 

V.  Warwick 
Wasby  «;.  Foreman 
Washborne  v.  Downes 
Washburn  v.  Burns 

V.  Sewell       46,  699,  724, 
Washington,  &c.  R.  R.  Co.  v. 

der,  &c.  R.  R.  Co. 
Washington  v.  Emery 
Wassell  r.  Leggatt 
Wasson  v.  Connor 
Watchman,  The 
Waterhouse  v.  Stansfield 
Waterman  v.  Alden 

V.  Baldwin 

V.  Cochran 

V.  Spaulding 

V.  Sprague  Manuf.  Co. 

V.  Webster 
Waters  v.  Bailey 

V.  Conolly 

r.  Groom 

V.  Margerum 

V.  Stickney 

V.  Tazewell 

V.  Thorn 
Watertown  v.  White 
Watkins,  Ex  parte 

V.  Check 

V.  Holman 

V.  Jones 

V.  Quarles 

V.  Russell 

V.  Specht  312, 

V.  Stockett 

V.  Weston 
Watkyns  v.  Watkyns      628, 
Watson,  Ex  parte 

V.  Bagaley 

t'.  Bane 

I'.  Bothwell 

V.  Brickwood 

r.  Holden 

r.  James 

V.  Knight 

I'.  Le  Row 

V.  Marshall 

V.  Martin 


cxli 


221 

239 

863 

720 

438 

571 

232 

648 

873 

272 

139 

84,  85 

454,  467 

554 

361 

97,  98 

922 

312,  315,  581 

474 

825 

605 

648,  651 

222,  834 

246  a 

377 

681 

730,  741,  748 

Alexan- 

282 

466 

863 

223 

592 

72 

276,  891 

768 

891,  900 

780,  781,  783 

591 

791 

129,  196 

590 

199 

500 

182 

515,  653 

199,  202 

757 

65 

795,  800,  810 

41 

277 

380 

239 

316,  343,  858 

226 

357 

633,  637,  673 

752 

589 

238 

182 

566 

459 

763 

593 

142, 149,  218 

630 

248 


cxlii 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


Watson  V.  Mayrant  121 

V.  Pearson  312,  315,  414,  499,  501 

V.  Saul  57G,  745,  8G;5 

V.  Smith  378 

V.  Stone  456,  914 

V.  Sutro  866 

V.  Thurber  680 

V.  Toone  861 

V.  Wells  232 

V.  Young  622 

Watt  V.  Ball  323 

V.  Crevke  511  a 

V.  Watt  142 

Watton  V.  Penfold  750 

Watts  V.  Bullas  107,  108 

t\  Cresswell  53 

V.  Girdlestone    453,  462,  466,  469,  509, 

539,  777 

V.  Kancie  809 

V.  Symes  347 

V.  Turner  520 

Watts'  Settlement  292 

Waugh  V.  Kiley  55 

V.  Wyche  921 

Wavell  V.  Mitchell  875 

Wav  V.  Fatty  237 

Wav's  Settlement  101,  102 

"Trust,  Jn  re  103,  104 

Waynian  v.  Jones  418,  419 

Wayne  v.  Hanham  761 

Wavnesburg  College's  App.  82 

Weale  v.  Ollive  100 

Weall,  In  re  813,  902 

451 

790 

127,  128 


Wearing  i'.  Wearing 
Weatherb}'  v.  St.  Giorgio 
Weaver  v.  Fisher 


V.  Leiman 

863,  865 

Webb,  In  re 

466 

V.  Bailey 

133 

V.  Claverden 

182 

V.  Crawford 

520 

v.  Daggett 

586, 

590,  600 

V.  De  Beauvoisin 

908 

V.  Deitrich 

56,  276 

V.  Grace 

516 

V.  Jones 

566 

V.  Kelley 

119 

V.  Ledsam 

404 

411,  412 

V.  Lugar 

196 

V,  Neal 

43 

276,  698 

V.  Robinson 

238,  239 

V.  Sadler 

254 

V.  Shaftesbury  275,  280,  282,  293,  358, 

427,  458,  508,  912,  913 

V.  Vermont  Central  R.  Co.  875 

V.  Webb  395,  569,  888,  918 

V.  Wools  112,  113,  115,  118,  620 

Webb's  Appeal  633,  641 

Webb's  Estate  587 

Webber  v.  Webber  480 

Weber  v.  Bryant  699 

Webster  v.  Boddington  385,  508 

V.  Cooper  299,  307,  312,  315,  317 

V.  King  203 

V.  Morris  112,  384,  713,  736 

V.  Xewbold  863 

V.  Vandeventer  274,  343,  921 

V.  Webster  438,  672,  674 

V.  Wiggin  705 


Wedderburn  v.  Wedderbum  200,  429, 

430,  454,  470,  745,  851,  863,  804, 

865,  923 

Wedgewood  v.  Adams  787 

Weed's  Estate  902,  910 

Weekham  v.  Berry  329 

Weekly  v.  Ellis  133 

Weeks  v.  Cornwall  765 

V.  Lego  660 

V.  Weeks  633 

Weems  v.  Coker  820  a 

V.  Harrold  820  a 

Weigand's  Appeal  417,  420 

Weil  V.  Lehmaj-er  894 

Weiland  v.  Townsend  510 

Weir  V.  Tannehill  594 

Weisbrod  v.  Chicago  678 

Weisel  v.  Cobb  910,  917 

Weisham  v.  Hocker  76 

Weiss  V.  Dill  912 

V.  Ileitkamp  162 

Welborn  v.  Rogers  864 

Welbv  V.  Welby  189 

Welch,  In  re  618 

V.  Allen  320 

V.  Brimmer  378 

V.  Greenhalge  783 

V.  Henshaw  96,  252 

V.  Mandeville  330 

V.  McGrath  195 

V.  Parran  238 

V.  Welch  647,  649 

Weld  V.  Bonham  885 

Weldon  v.  Riviere  646 

V.  Winslow  646 

Welford  v.  Beazeley  82 

V.  Chancellor  178 

Welhelm  v.  Falmer  58 

Welker  v.  Wallace  846 

Well  V.  Thornagh  182 

Well  Beloved  Weeks,  In  re  700 

Wellbeloved  v.  Jones  702,  732 

Wellborn  v.  Williams  238 

Weller  v.  Fitzhugh  433 

V.  Ker  508,  517 

V.  Weller  508 

Welles  V.  Ely  555 

V.  Lewis  502 

V.  IMiddleton  202 

V.  Yates  186 

Welleslev  v,  Beaufort  613 

V.  Wellesley  122,  672 

Wellman  v.  Lawrence  602  r 

Wells,  In  re  104,  253,  622 

V.  Chapman  330 

V.  Doane  705,  720,  724,  748 

V.  Foster  69 

V.  Francis  129 

V.  Heath  736,  737,  748 

V.  Lewis  499 

V.  Malbon  920,  926 

V.  McCall     118,  310  a,  320,  386  a,  652, 

671 

V.  Price  636 

V.  Prince  856 

V.  Stout  672 

V.  Thorman  655,  660 

V.  Wells  602 ? 

Wells-Stoue  Merc.  Co.  v.  Grover  926 


INDEX   TO   CASES   CITED. 
[References  are  to  sectionB.] 


cxliii 


Welsh  V.  Brown 

917 

f.  l-'oster 

380,  381 

V.  London  Ass.  Co. 

bh-.i 

Welston  r.  Ilildreth 

078 

Welt  V.  Franklin 

2'J'.) 

Wi'lton  t'.  Devine 

143,  144 

W'emyss  r.  White 

277,  28'J,  827  a 

Wendell  v.  French 

4U3,  "JIB 

Wentworth  v.  Read 

5G8 

V.   Slubk'S 

79 

V.  Tubb 

480 

Werborn  v.  Austin 

800 

West  V.  Berry 

705 

V.  Biscoe 

2'J9 

V.  Krissey 

361,  307,  8:!4 

V.  Fitz 

298,  312 

V.  Jones 

419 

V.  Kerr 

510 

V.  Knight 

095,  099 

V.  Moore 

17o 

V.  Palmer 

093 

V.  Kay 

511c 

V.  Raymond 

202 

V.  Robertson 

455 

V.  Shuttleworth 

160,  701,  702,  720 

V.  Sloan 

803 

V.  Smith 

918 

V.  Snodgrass 

592 

V.  Utica 

891 

V.  AVest 

647 

Westbroke,  In  re 

904 

Westbrook  v.  Harbeson 

220,  230 

Westcott  V.  Cady 

541 

V.  CuUiford 

470  rt 

V.  Edniands 

310,  311 

Wester's  Appeal 

194 

Westerfield,  In  re 

457,  848 

V.  .Janssen 

188 

V.  Kimmer 

133 

Western  r.  Cartwright 

801 

Western  R.  R.  Co.  v.  Nolan    328,  330,  877 

Westervelt  v.  Hoff  222 

V.  Matheson  187 

Westgate  v.  Handlin  602  u 

V.  Monroe  680 

Westley  v.  Clarke  410,  421 

V.  Williamson  891 

Westmacott  v.  Robins  231 

Westmeath  v.  Salisbury  072 

V.  Westmeath  672,  673 

Weston  V.  Barker  98,  593,  843 

Westover  v.  Carman  463 

V.  Chapman  297,  461,  408 

Westvelt  V.  Gregg  070 

Wetherbee  v.  Farrar  6o0 

Wethered  v.  Safe  Deposit  Co.  581 

Wetherell  v.  Collins  873,  892 

V.  Hamilton  75 

t>.  O'Hrien  837 

V.  Wetherell  511  c 

V.  Wilson  117 

Wetherhed  v.  Wetherhed  68 

Wetherill  v.  Hough  451 

Wetmore  v.  Brown  918 

V.  Parker  43,  738 

V.  Porter  815  c 

V.  Truslow  380  a 

V.  Wetmore  827  n 

Wetzel  I'.  Chaplin  98 


Wevmouth  v.  Sawtelle  . 
Whale  V.  Booth 
Whaler  f.  ("ox 
Whaley  v.  Drummond 

r.  Eliot 

V.  Whaley 
Whall  V.  Converse 
Whalley  r.  Whalley 
Whallon  v.  Scott 
Wham  i\  Love 
Wharf  V.  Howell 
Wharton  v.  Masterman 
What  ford  v.  Moore 
Wiiatlev  I'.  Oglesby 
Wiicate'r.  Hall 
\VlieatIey,  lie 
Wheat luy  v.  Badger 

V.  Boyd 

V.  Purr 
Whcaton  v.  Wheaton 
Wheeler,  In  re 

V.  Bingham 

V.  Bowen 

V.  Howell 

V.  Kirtland 

V.  Lane 

V.  Moore 

V.  Newhall 

V.  Perry 

V.  Reynolds 

r.  Smith 

V.  Stone 

V.  Sumner 

V.  Warner 
Wheeler's  Appeal 


145 

810,  811 

571 

511  0 

18G 

126,  127,  133 

920 

861 

590,  592 

900 

226 

399,  622 

580 

790 

375,  498,  511  « 

627 

262 

343 

86,98 

226 

290 

512 

629,  642 

570 

133,  324 

232 

642 

305 

262,  455,  928 

173 

117,  253 

602  6 

593 

757 

273,411 

Wheelock  v.  Am.  Tract  Society  699 

V.  IMoulton  757 

Wheete  v.  Hale  498,  511  a 

Whclan  v.  Palmer  511 

V.  Rnillv  117,  287 

V.  Whelan  83,  189,  201 

Wheldale  v.  Partridge  499 

Wheless  v.  Wheless  448 

Whelpdale  v.  Cookson  195 

Wherrv  v.  Hale  815  6 

Whetham  v.  Clvde  134 

Whetstone  v.  Sts.  Bury  301,  309 

I'.  Whetstone's  Ex'rs  863 

Whichcote  v.  Lawrence  195,  807 

V.  Lvle  34,  299 

Whicker  v.  Hume  700,  709,  741 

Whipple  V.  Adam  115,  110 

I'.  Clure  189 

V.  Fairchild  827  a 

Whistler  v.  Newman  658,  669,  900 

V.  Webb  873 

Whiston  V.  Rochester  742 

Whitall  V.  Clark  667 

"Whitcomb  v.  Cardell  82 

V.  Jacob  835,  837 

V.  Minichin  195 

White  V.  Albertson  330 

V.  Att.-Gen.  730,  748 

V.  Barton  261,  827 

r.  Baugh  443 

V.  Bavlor  311.  312 

V.  PriVgs  112,  113,  390 

V.  Brntton  113 

V.  Bullock  421,  918 


cxliv 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


White  V.  Callinan  679 

V.  Cannon  529 

V.  Carmarthen,  &c.  Ry.  752,  754 

V.  Carpenter  126,  132,  133,  139 


V.  Carter 

369 

V.  Casanave 

232 

V.  Commonwealth 

877 

V.  Cook 

795 

V.  Cuddon 

770 

V.  Damon 

183,  187 

V.  Ditson 

281,  471,  705 

V.  Dougherty 

237 

V.  Drew 

127 

V.  Evans 

94,  150 

V.  Ewer 

855 

V.  Fisk 

713,  720 

V.  Flora 

187 

V.  Foljambe 

774,  786 

V.  Grane 

612 

V.  Hale 

384,  730,  737 

V.  Hall 

748 

V.  Hampton 

38,  240,  721 

V.  Haynes 

873 

V.  Hicks 

509  c 

V.  Hildreth 

678 

V.  Howard 

393,  715,  748,  765 

V.  Keller 

384 

V.  Leavitt 

864 

V.  Lincoln 

446,  821 

V.  McDermott 

503 

V.  McKeon 

277 

V.  Malcomb 

602  r 

V.  Mass.  Inst,  of  Technology         262, 

401,  571 

V.  McNutt 

660,  680 

V.  Montserratt 

590 

V.  Nutts 

122 

V.  Parker 

305,  307 

V.  Patten 

246  a 

V.  Rice 

63 

V.  Ross 

85 

V.  Selden 

843 

V.  Sheldon 

140 

V.  Sherman 

453,  467,  471 

V.  Simpson 

317 

V.  Sprague 

893 

V.  St.  Barbe 

511  ffl 

V.  Stanfield 

366,  827  6 

V.  Story 

680 

V.  Stover 

238 

V.  University 

748 

V.  Watkins 

411,  602  f 

V.  Weldon 

137 

V.  White    71,  72,  82, 118,  240,  256,  277, 

287,  386  a,  532,  533,  559,  564,  690, 

699,  719,  727,  729,  730,  849, 863 

864,  874 

r.  AVTiitney  602  i,  602; 

V.  Williams  94,  150,  232,  237,  2.'!'8 

V.  Wilson  248 

"White's  Trust,  In  re  250,  251,  727 

White  School  House  v.  Post  244,  245 

Whiteacre,  ^z  parte  337 

Whitecar's  Estate  462 

Whitehead,  Ex  parte  619 

V.  Lord  864 

V.  Whitehead  910 

Whitehom  v.  Hines  189,  204 

Whitehouse  v.  Cargill  568 


Whitehouse  v.  WTiitehouse  95,  163 
Whitehurst  v.  Harper                251,  255, 639 

Whiteley  v.  Central  Trust  Co.  238 

V.  Learoyd  458 

Whitesides  v.  Carman  660 

V.  Dorris  627,  628 

V.  Greenlee  191 

Whitfield  V.  Burnett  540 

V.  Prickett  388,  555 

t'.  Whitfield  617 

Whiting  V.  Gould  84,  85 

V.  Whiting  112, 117,  343, 

866 

Whitley  v.  Ogle  145,  147 

Whitlock  V.  Washburn  408 

Whitlock's  Case  530 

Whitman's  Appeal  200 
Whitmarsh  v.  Robertson           826,  894,  901 

Whitmore  v.  Turquand  593,  826 

V.  Weld  53 

Whitney  v.  Fox  861 

V.  Krows  590 

Whitridge  v.  Williams  545 

Whittaker,  In  re  603 

Whittemore  v.  Cowell  167 

Whitten,  Re  382 

V.  Whitten  143 

Whittenden  Mills  v.  Upton  757 

Whittick  V.  Kane  218 

Whittle  V.  Halliday  878 

V.  Henning  633 

V.  Vanderbilt  M.  Co.  828 

Whittlesey  v.  Hughes  402 

Whitton  V.  Whitten  162 

Whitworth  v.  Carter  686 

V.  Davis  231 

Whorwood  v.  University  Coll.  718 

Whvte  V.  Arthur  85 

Wickes  V.  Clarke  628 

Wickesham  v.  Savage  254 

Wickham  v.  Berry  305,  526 

V.  New  Brunswick  &  Canada  Rail- 
way 750 
Wiek'liffe  v.  Lexington  863,  864 
Wickman  v.  Robinson  231 
Wicks  V.  Westcott  770 
Widdowsen  v.  Duck  457,  474 
Widgerv  v.  Haskell  593 
Widmofe  v.  Woodrofle  255,  701 
Widner  v.  Fay  918 
Wiener  v.  Davis  586 
Wier  V.  Simmons  873 
Wigg  V.  Wigg  121,  217,  221 
Wiggin  V.  Swett  556 

V.  Wiggin  133 

Wigq;ins  v.  Bethune  52 

Wigglesworth  v.  Steers  191 

Wight  V.  Leigh  359 

Wightman  v.  Doe  602  t,  782 
Wightwick  V.  Lord                   450,  551,  771 

Wigram  v.  Buckley  223 

Wigsell  V.  Wigseil  348 
Wike's  Case                                40,  325,  633 

Wilbur  r.  Spofford  602  h 

Wilcock,  Re  131 
Wilcocks  V.  Hannj-ngton            96, 101, 102 

Wilcox  V.  Calloway  239 

V.  Gilchrist  83,  729 

I'.  Kellogg  586 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


cxlv 


Wilcox  V.  Morris 

602  d 

V.  Quinby 

275 

V.  Wilcox 

312 

Wild  V.  Wells 

871 

Wilde  V.  Davis 

397 

V.  Gibson 

172,  180 

Wilder  V.  Secor 

863 

Wildennaii  v.  Baltimore 

748 

Wildev  r.  Kobinson 

277,  848 

Wilding  r.  Bolder 

5D 

277,  297 

V.  Richards 

593 

Wiles  V.  Cooper 

888 

V.  Greshain         438,  440 

460, 

482,  847 

V.  Greshoa 

185 

V.  Wiles 

627, 

628,  029 

Wiley  t'.  Collins 

593 

V.  Smith 

359, 370 

Wilhelm  i'.  Folmer 

127 

Wilkes  V.  Ferris 

585 

V.  Holmes 

5116 

V.  Steward 

453,  460 

1'.  Wilkes 

672 

Wilkins  v.  Anderson 

217 

V.  Frye 

786 

V.  Go'rdon 

602  ee 

V.  Hogg 

417 

V.  Hunt 

892 

V.  Stevens 

137 

Wilkinson,  Ex  parte 

203 

In  re 

455 

V.  Bewick 

443 

V.  Bradtield 

189,  226 

V.  Buist 

248 

V.  Charlesworth 

641 

V.  Cheatham 

647 

V.  Duncan 

450 

r.  Getty 

248 

V.  Gibson 

920 

V.  Lindgren 

903  rt 

V.  Maliu 

413,  725 

V.  May 

520 

V.  Parrv 

285 

286,  402 

V.  Stafford 

405 

V.  Stewart 

243 

V.  Wilkinson        66,  162, 

189, 

388,  555 
678,  912 

V.  Wright 

682 

Wilkinson's  Estate 

863 

Wilks  r.  Fitzpatrick 

627 

!'.  Groome 

443,  446 

Wilkson  I".  Leland 

610 

Willan  V.  Willan 

171, 

184,  189 

Willard  r.  Eastman 

661 

r.  Fenn 

425 

V.  Ware 

338 

r.  Willard 

77,82,147 

Willard's  Appeal 

119 

Willats  V.  Busby 

883 

Willets  V.  WiUets 

121 

Willett  V.  Blanford 

429,  430 

V.  Sandl'ord 

7 

Willey's  Estate 

709 

William  v.  l\Iosher 

918 

William's  Case 

554, 

610,  618 

Estate,  In  re 

787 

Settlement 

291 

Williams,  Kx parte 

5116,  614 

V.  Allen 

643,  877 

».  Bailey 

652 

VOL.   l.—j 

Williams  v.  Branch  Bank 

910 

f.  Brown 

126,  585 

r.  (,'allow 

634,  637 

V.  Carle 

213 

r.  Carter 

375,  767 

V.  Chittv 

34,  569 

V.  Clairborne 

047 

V.  Coade 

160 

V.  Conrad 

262 

V.  Corbett 

123,  907 

V.  Cork 

803 

V.  Cushing 

259,  262 

i".  Donaldson 

660 

V.  First  Pres.  Soc.     229, 

299,  312,  320, 

860,  864 

V.  Fitch 

182 

V.  Haddock 

443 

V.  Harrington 

010 

t'.  Haskins 

103,  910 

V.  Headland 

924 

V.  Ilollingworth 

126,  127 

t'.  Jones 

150,  153 

V.  Kershaw                 159 

573,  712,  748 

V.  King 

270 

V.  Knight 

371 

V.  Lewis 

369 

V.  Lonsdale 

325,  484 

V.  Maitlaud 

421 

V.  ^lans 

72 

V.  Marshall 

205 

V.  Masscy 

812 

V.  Mattocks 

891 

V.  Maull 

648,649 

V.  McConico 

305 

V.  Moslyn 

5^3 

V.  Munroe 

782 

V.  Nichol 

276 

V.  Nixon    262,  412,  417,  419,  421,  423, 

424,  466 

598,602^,  602  m,  621,  795 

226 

274 

694,  721,  722,  730,  748 

200,  468,  471,851 


V.  Otey 
V.  Owen 
V.  Parrj' 
V.  Pearson 
V.  Powell 
V.  Roberts 
V.  Salmond 
V.  Stevens 
r.  Teal 
t'.  Thorn 
V.  Van  Tuyl 
V.  Vreeland 
V.  Waters 
V.  Went  worth 
I'.  Williams 


232,  237 

885 

427,  429 

376 

386  rt 

126 

104,  171, 181, 182 

298,  301,  310 

480 

96,  112,  113,  114,  146, 

147,  222,  396,  398,  443,  493,  687, 

694,  709,  .'28,  737,  748,  838 

V.  Wood  239 

V.  Woodward  768,  769 

V.  Young  234,  238 

Williams's  Appeal  652 

Williamson  v.  Beckham  655.  660 

V.  Berry  C03,  610 

V.  Branch  Bank  225 

I".  Cline  653 

V.  Coddrington  111,  367 

t'.  Curtis  597,  795 

V.  Field  230,  763 

r.  Gihon  214 

V.  KohD  428 


cxlvi 


INDEX   TO   CASES   CITED. 
[References  are  to  sections.] 


"Williamson  v.  Morton  25,  794,  800,  810 

V.  New  Albany,  &c.  Ry.  Co.    75'J,  7iiO 

V.  Suydam  282,  7G0 

V.  Wicliersliam  282 

V.  Williamson  462,  468,  547,  548, 

651,  GOO 

V.  "Woodard  7G8 

r.  Yager  82,  103 

Williamson's  Estate  448 

Williard  V.  Williard  133,  134,  215 

Willie  V.  Ellice  875 

Williraan  v.  Holmes  300,  310,  312 

Willington  v.  Adam  93 

VVillink  v.  Morris  Canal,  &c.  Co.  759 

V.  Vanderveer  142 

Willis  V.  Brown  706 

V.  Cadenhead  677 

V.  Foster  823 

V.  Hiscox  520,  900,  901 

V.  Kibble  904 

V.  Roberts  805 

V.  Sharp  466 

V.  Smith  511  b 

V.  Smvth  82 

V.  Willis  126, 137 

V.  Yernegan  187,  189 

Williston  V.  Michigan,  &c.  Railw.  545 

Wiilmot  V.  Jenkins  263,  574 

Willoughby  V.  Willoughby  218 

Wills  V.  Cooper  347 

V.  Cowper  500 

V.  Savers  647,  649 

Wills's  Appeal  440,  453 

Willson  »;.  Louisville  Trust  Co.       858,  865 

V.  Tyson  918 

Wilmerding  v.  McKesson  469,  471 

V.  Russ  865 

Wilmot  V.  Pike  438 

Wilmoth  V.  Wilmoth  166 

Wilson,  In  re  610,  910 

V.  Allen  349,  351,  354,  355 

V.  Anderson  104 

V.  Ball  113,  117 

V.  Bennett    339,  340,  394,  495,  503,  504 

V.  Brownsmith  903  a 

V.  Castro  126 

V.  Cheshire  165,  301 

V.  Clapham  122 

V,  Daniel  213 

V.  Davison  239,  598,  797,  798 

V.  Day  587,  590 

V.  Dennison  408,  413 

V.  Dent  77,  82 

V.  Doster  810 

V.  Duguid  252,  256 

V.  Eden  511  c 

V.  Edmonds  540 

V.  Forsyth  591 

V.  Goodman  848 

V.  Graham  237 

V.  Gray  590 

V.  Halliley  597 

V.  Harman  556 

V.  Hoare  326 

V.  Kenrick  571 

V.  Leary  920 

V.  Lynt  738,  748 

V.  McAulev  748 

V.  McCullo"ugh  34 


Wilson  V.  Maddison  117 

V.  Major  113,  116 

V.  Md.  Life  lus.  Co.  768 

V.  Mason  408 
V.  Moore               245,  848,  863,  875,  876 

V.  Mushet  672 

V.  Peake  472 

V.  Pennock  273 

V.  Shively  732 

V.  South  Park  Com'rs  785 

V.  Squire  993  a 

V.  Tappan  93 

V.  Towle  240,  287,  294 
V.  Troup         602  d,  602  g,  602  h,  602  n, 

853 
V.  Turner  612 
V.  Wilson      94,  275,  282,  385,  395,  397, 
654,  072,  673,  900,  918 
Wilson's  Appeal  910 
Estate  68,  262 
Wilt  V.  Franklin  259,  590,  593 
Wiltbank's  Appeal  545 
Wilton  V.  Devine  143 
V.Hill  654,671,826,849 
V.  Jones  873 
Wimbish  v.  Montgomery  Mut.  Build- 
ing «&  Loan  Assoc.  122 
Winch  V.  Brutton  112 
V.  James  636 
V.  Keeley  345 
V.  Railway  Co.  757 
V.  Winch  615 
V.  Winchester  174 
Winchelsea  v.  Garrety  206 
V.  Nordcliff  458,  605,  611 
Winchelsea's  Policy  Trusts,  In  re  848 
Winchester  v.  Baltimore  R.  R.  Co.        222 
V.  Knight  871 
1).  Machen  653 
Winchester,  &c.  Turnpike  C.  157 
Winders.  Diffenderffer  842 
Winebrenner  v.  Colder  733 
V.  Weisiger  214 
Wing  V.  Cooper  602  g 
Winged  V.  Lefebury  217,  231 
Wingfield  v.  Rhea  815  a 
Wingtield's  Case  701 
Winkfield  v.  Brinkman  127 
Winn  V.  Dillon  206 
V.  Fenwick  258 
Winnall,  Ex  parte  402 
Winona  &  St.  P.  R.  Co.  v.  St.  Paul  & 

S.  C.  R.  Co.  816  a 

Winslow,  In  re  902 

V.  Ancrum  600 

V.  Cummings  701,  724,  730,  748 

V.  Tighe  196 

V.  Trowbridge  724 

Winsmith  v.  Winsmith  815  a 

Winsor  v.  Mills  382,  386 

Winston  v.  Gwathmey  174 

V.  Jones  766 

Winter  v.  Anson  235,  236,  239 

V.  Geroe  205,  602  v 

V.  Rudge  291 

V.  W^alters  677 

Wintermute  r.  Snyder  184 

Winthrop  v.  Att.  Gen.  287 

Wintle,  In  re  450 


INDEX   TO   CASES   CITED. 
[References  ore  to  sections.] 


cxlvii 


Wisden  v.  Wisden 
Wise,  Jn  re 

V.  I'oote 

V.  Wise 
Wiseman  i'.  Baylor 

t'.  Ikake 

V.  lioper 
Wistar's  Appeal 
Wiswall  r.  liuss 

r.  Stewart 

t'.  Tick  nor 


511c 

541,  018,  803 

18'J 

259 

80 

188 

111 

408,  911,  918  7* 

002  e,  002  /(,  002  r,  002  bh 

428 

592 

Wiswell  V.  First  Cong.  Church    470  a,  928 
Witliani  I'.  Broouer  298,  299,  520 

Withers  r.  Allgood  358 

V.  Ewing  280 

V.  Ilichnian  618 

V.  Withers  120 

V.  Yeaduu    38,  117,  121,  248,  251, 254, 

255 
Witherspoon,  Ex  parte  918 

Withey  v.  Manjjles  257 

Withington  v.  Withington  292 

Whitman  v.  Lex        701,  724,  728, 731,  748 


V.  Norton 

670 

Witman's  Appeal 

918 

W^itnier's  .Appeal 

462 

W'itte  V.  Wolfe 

827  rt 

Wittenbrock  t'.  Cass 

82 

Witter  V.  Duley 

203 

V.  Witter 

17, 

406, 

521,  605 

Witters  v.  Sowles 

678 

Wittingham  v.  Lighthi 

pe 

163 

Witts  V.  lioddington 

248 

250 

251,  258 

I'.  Dawkins 

655,  670 

V.  Horney 

126,  137 

V.  Steere 

544,  545 

Woddrop  V.  Weed 

406 

Woelper's  Appeal 

633 

Woerz  V.  Kademacher 

142 

Woicott  t'.  Wilesy 

801 

Wolf  V.  Corley 

75 

t'.  Eichelberger 

600 

V.  Hill 

770 

Wolfe  r.  McDowell 

602'/ 

V.  Washburn 

438,  440 

Wolff  V.  Van  Meter 

680 

Wolford  V.  Ilewington 

172,  215 

W^olfort  t'.  lieilly 

454 

Wollaston  r.  Tribe 

104 

W^olley  i".  Jenkins 

498 

Wolmershauen  v.  Gullick 

848,  803 

Wolstoncraft  v.  Long 

597 

Womack  v.  Austin 

847 

W'omen's  Cli.  Ass'n  v. 

Campbell 

727 

Wood  V.  Abrey 

183, 

187,  192 

V.  Hank  of  Kentucky 

237 

V.  IJrown 

821 ,  884 

V.  Burnhain 

330, 

359,  370 

r.  Uolviu 

602  i 

V.  Cox 

112, 

114, 

152,  153 

r.  Downes 

200, 

201 

202, 827 

V.  Dudley 

571 

V.  Dumnier 

242 

t".  (iariit'tt 

468 

I',  (iniidridge 

768 

V.  Hardisty 

200 

V.  Harmau 

509, 

794,  799 

V.  Lee 

918 

V.  McCann 

214 

Wood  V.  iSIann 

221 

V.  Mather 

305,  010 

V.  Midgeley 

84 

V.  i'aine 

099 

V.  Perkins 

76,  127 

V.  I'artridge 

438 

V.  liichardson 

117,  511 

770,  787 

V.  Snow 

002  » 

V.  Sparks 

262,  499 

V.  Stane 

275 

V.  Vanderburg 

891 

V.  Wliite 

498, 

766,  8()2 

V.  Williams 

801 

V.  Wood    256,  305,  391,  411,  417,  420, 

400,  400 

Wood's  Appeal  918 

Woodard  v.  Wright  477 

Woodbridge  v.  Perkins  438 

Woodburn  v.  Moslier  590 

V.  Woodburn  539 

Woodbury  v.  Ubear  891 

V.  Woodbury  189 

Woodcock  V.  Dorset  580 

V.  Kenncck  250,  258 

Wooden  V.  Kerr  281,  917 

Woodford  v.  Charnley  101,  102 

V.  Park  hurst  699 

V.  Stevens  127 

Woodgate  v.  Flint  317 

Woodhead  r.  Marriott  900 

W^oodliouse  V.  Ilaskins  359 

V.  Meredith  206 

WoodhuU  V.  Longstreet  769 

V.  Osborne  135 

Woodin,  Ex  parte  246,  907 

Jn  re  018 

Woodlee  y.  Burch  199 

Woodliffe  V.  Drury  101 

Woodman  v.  Good  540,  541 

V.  Morrel    126,  143,  144,  146,  147, 151 

V.  Neal  678 

Woodmeston  v.  Walker  652,  671 

Woodroff  V.  Burton  183 

Woodruff  V.  Cook  205,  218,  476  a,  928 

t'.  Marsh  131 

I'.  New  York,  &c.  R.  Co.  760,  910 

V.  Orange  328 

V.  Kobb  602  d 

V.  Snedecor  441,  918 

V.  Woodruff  277 

Woodrum  i'.  Kirkpatrick  648 

Woods  t'.  Axtoa  907 

V.  Bailey  232 

V.  Dille  84 

V.  Farmene  241 

V.  Stevenson  805 

V.  Sullivan  646,  547 

V.  Tombs  456 

V.  Williams  873 

Woodside  v.  Hewel  137 

V.  Woods  113,  117,  118,  620,  880 

Woodson  V.  aicClellaud  109 

V.  Perkins  600 

W'oodward  f.  Ilalsey  511  6 

t'.  Jewell  790 

V.  Schatzell  72 

r.  Seaver  685 

V.  Stubbs  299 

V.  Woodward  239,  607 


cxlviii 


INDEX   TO   CASES   CITED. 
{.References  are  to  sections.] 


Woodward's  Appeal  458 

AVoodwiiie  v.  \Voodrum  793 

Wooldredge  v.  Stone  119 

Wooldridge  v.  Planters'  Bank  284,  602  m, 

G21 

V.  Watkins  499,  500 

Woolf  V.  Bate  330 

Woollain  V.  Ilearne  38,  76,  226 

Woollands  v.  Crowcher  633 

Woollett  V.  Harris  157,  158 

Woolmer's  Estate  160 

Woolmore  v.  Burrows  366,  375,  390 

Woolridge  v.  McKenna  52 

Woolsey  v.  Verner  592 

Wooster  r.  Cooper  511a 

Wooten  V.  Burch  546,  547 

V.  Sherrard  450 

Worbass  v.  Armstrong  900,  918 

Worcester  v.  Western  Railway  757 

Worcester  Corn  Exch.  Co.,  In  re  486 

Wordsworth,  In  re  281 

Work  V.  Brayton  239 
World's    Columbian     Exposition    v. 

United  States  705 

Worley  v.  Frarapton  786 

V.  Naylor  602  r 

V.  Sipe  79 

Wormack  v.  Austin  460 

V.  Rogers  187 

Worman  v.  Worman  457,  511  b 

Wormley,  Re  189 

V.  Wormley       217,  221,  460,  475,  509, 

593,  770,  777,  794 

Worrall  v.  Harford  417,  894,  907,  910 

V.  Jacobs  672,  673 

V.  Marlar  636 

V.  Worrall  672 

Worrell  v.  Presbyterian  Church             730 

Worrell's  Appeal  900 

Worsley  v.  Scarborough  222 

Worth  V.  Arden  264 

V.  Curtis  606 

V.  McAden  262,  415,  416,  418 

Wortham  v.  Pemberton  633 

Worthington  v.  Evans  502,  517,  518 

V.  McCraer  618,  619 

Worthy  v.  Johnson  621 

Wott  V.  Grove  206 

Wi-ae  V.  Seed  821 

Wragg  V.  Comptrollor  Gen.  232 

Wrangham,  Ex  parte  743 

Wray  v.  Steele  132 

Wren  v.  Kirton  405,  443,  444,  463 

Wrey,  In  re  622 

V.  Smith  551 

Wright,  In  re  826,  925 

V.  Arnold            170,  627,  629,  630,  849 

V.  Atkins  112,  113,  114,  120 

V.  Barlow  511  ^ 

V.  Booth  189 

V.  Brown  645,  685 

V.  Bundy  602  d 

V.  Cadogan  656 

V.  Cain  75 

V.  Campbell  195 

V.  Chard  658,  659,  872 

V.  Dame  217,  232 

V.  Delafield  320 

V.  Dorchester  438 


Wright  V.  Douglass 

81, 

82, 

328,  520 

V.  Franklin  Bank 

437  a 

V.  Gay 

133 

V.  Goff 

511a 

V.  Henderson 

602 

V.  King 

133,  137 

V.  Lynn  700,  730,  748 

V.  Miller  98, 112,  117,  538,  546 

V.  Mills  206 

V.  Morley  633,  634 

V.  Pearson  305,  357,  359 

V.  Proud  200,  201,  204,  209 

V.  Rose  602/ 

V.  Rutter  641 

V.  Smith  195 

V.  Snowe  53,  170,  171,  849,  930 

I'.  Trustees  Meth.  Epis.  Church        55, 

499,  730,  748 

V.  Vanderplank  201 

V.  Wakeford  511  b,  783,  784 

V.  Wilkin  121 

V.  Wilson  187,  602  z 

V.  Woodland  239 

V.  Wright  468,  471,  511a,  652,  891,  918 

Wright's  Appeal  569 

Trusts  922 

Wrigley  v.  Swainson  "  213 

V.  Sykes  802,  803,  805 

Writhingham  v.  Burgoyne  214 

Wroe  V.  Seed  '  900 

Wyatt,  In  re  117,  554 

V.  Sharratt  825,  826,  827 

Wvch  V.  East  India  Co.  858,  859 

W'yckoff  V.  WyckoS  802 

Wygal  V.  Bigelow  602  v 

Wykham  v.  Wykham      305,  308,  317,  319, 

511  c  540 

Wylie  V.  Charlton  '    97 

Wyman  v.  Babcock  226 

V.  Carter  500 

Wyncoop  v.  Wyncoop  205 

Wynn  v.  Sharer  127,  138 

V.  Hawkins  112 

V.  Humberstone  822,  823 

V.  Styan  856 

V.  Warren  453 

Wynne  v.  Tempest  848 

Wythes,  In  re  329 


X.,  In  re 


Y. 


Tader's  Appeal 

Yale  V.  Dederer  645, 

Yale  Gas  Stove  Co.  v.  Wilcox 
Yallop,  Ex  parte 

V.  Halworthy 
Yancy  v.  Jlanck 
Yarborough  v.  West 
Yard's  Appeal  381, 

Yardley  v.  Raub  664, 

V.  "Sibbs 
Yarnall's  Appeal   310  a,  316,  320, 

Yarnold  v.  Moorhouse 


603 


468 

660,  680 

207 

131 

871 

232 

97 

384,  737 

665,  6G6 

216 

358,  361, 

652 

388,  555 


INDEX   TO   CASES   CITED. 
[References  are  to  eectiona.] 


cxlix 


Yates  V.  Compton 

V.  Ilainbly 

V.  Yates 
Yeakel  v.  McAtee 
Yearance  v.  I'owell 
Yeates  v.  Grover 

V.  Prior 
Yeatman  i'.  Bellmain 

V.  Yeatman 
Yeldell  i'.  (^uarles 
Yem  t'.  Edwards 
Yerby  v.  Lvnch 
Yerger  v.  Jones 
Yerkes  v.  Ferria 

t'.  Richards 
Yesler  v.  llochstettler 
Yoke  i:  Barnet 
Yonge  V.  Hooper 
Yore  ('.  Cook 
York  V.  Brown 
York  V.  E;iton 

V.  Mackenzie 

V.  North  Midland  Ry.  Co 
York,  &c.  Ry.  Co.  v.  Myers 
York  Railway  v.  Hudson 
Yorkshire  Ry.  Wagon  Co.  v.  Maclure 
You  I'.  Flinn 
Youge  V.  Furst 
Young,  Ex  parte 

V,  Benthuj'sen 

V.  Bradley 

V.  Brush 

V.  Bumpass 

V.  Comb 

V.  Com'rs 

V.  De  Putron 

V.  Easley 

V.  Frost 

V.  Graff 

V.  Jones 

V.  Keogh 

n.  Mackall 

V.  Martin 

V.  Mutual  Life  Ins.  Co. 

V.  Miles 

V.  Peachy 


119,  308,  7C5 

873 

548,  551,  748 

145 

571 

68 

175 

658 

873 

627 

196 

643 

225,  836,  841.  842 

83 

437  a 

678 

640 

195 

72 

432,  895 

136 

867 

207 

602  ee 

904 

485 

299 

515 

918 

783 

312 

468 

180 

468 

727 

5116 

827  a 

187 

32,  602  f 

664 

610 

863 

112,113,  115 

790 

329 

104,  151,  162,  201,  225 


Young  V.  Scott 
V.  Snow 
V.  Swiggs 
V.  ^\'ale^park 
V.  Weed 
V.  Williams 
V.  Wilton 
V.  Wood 
V.  Young 


386a, 
863, 


283,  499,  648,  649, 
820  a,  856, 
Young's  Estate 

Young  Men's  Society  v.  Fall  River 
Younge  r.  Cocker 

V.  Graff 
Younger  r.  Welham 
Younghusband  v.  Gisborne      119,  386, 
Youse  V.  Martin 
Yuudi's  Appeal 


920 
769 
806 
466 
238 
568 
237 
655, 
920 
454 
730 
52 
680 
413 
555 
221 
468 


Zabriskie  v.  M.  &  E.  R.  R.  Co. 
Zacharias  v,  Zacharias 
Zanjbaco  v.  Cassanetti 
Zanesville  C.  &  M.  Co.  r.  Zanesv 

Zeback  v.  Smith 

Zehnbar  v.  Spillman 

Zeisweiss  v.  James  697,  721, 

Zeller  v.  Eckert 

V.  Jordan 
Zentmyer  r.  Miltower 
Zieverink  r.  Kemper 
Zimmerman  v.  Anders 

V.  Barber 

V.  Harmon 

V.  Kinkle 

V.  Makepeace 
Zimmerman's  Will,  In  re 
Zoach  V.  Lloyd 
Zouch  V.  Parsons 
Zundell  v.  Gess 
Zwingle  v.  Wilkinson 


.•ille 


321 
863 
482 
731, 
748 

499,  765 
282 

rSO,  732, 
748 

863,  864 
171 
232 
223 

731,  748 
131 
195 
815  c 
878 
715 
611 
33 
131 
237 


LAW   OF    TRUSTS. 


CHAPTER   I. 

INTRODUCTION. 

ORIGIN,    HISTORY,   DEFINITION,   AND    DIVISION   OR    CLASSIFICATION 

OP   TRUSTS. 

§  1.    The  general  nature  of  trusts. 

§  2.     The  technical  nature  of  trusts,  and  their  origin  in  the  Jidei  commissa  of 
the  Koman  law. 

§  3.     The  origin  of  uses. 

§  4.     The  inconveniences  that  arose  from  the  prevalence  of  uses. 

§  5.    The  statute  of  uses. 

§§  6,  7.     The  effect  of  the  statute  of  uses,  and  the  origin  of  trusts. 
§§  8,  9,  10.     Developments  of  trusts  in  England  and  America. 

§11.     Advantages  of  tlie  late  adoption  of  trusts  in  America. 

§  12.     Object  of  this  treatise. 
§§  13-17.     Definition  of  trusts. 

Classification  of  trusts. 

§  18.  Simple  and  special  trusts. 

§  19.  Ministerial  and  discretionary  trusts. 

§  20.  A  mixed  trust  and  power,  and  a  power  annexed  to  a  trust. 

§  21.  Legal  and  illegal  trusts. 

§  22.  Public  and  private  trusts. 

§  23.  Duration  of  a  private  trust  and  of  a  public  trust. 

§§  24-27.  Express  trusts,  implied  trusts,  resulting  trusts,  and  constructive 

trusts. 

§  1.  In  the  earlier  states  of  society  the  rules  that  govern 
the  ownership,  disposition,  and  use  of  property  are  simple 
and  of  easy  application.  But  as  States  increase,  as  property 
accumulates,  and  the  business  and  relations  of  life  become 
more  complex,  the  rules  of  law  which  the  new  complications 
demand  become  themselves  complicated,  and  sometimes  difti- 
cult  to  understand  and  api)ly.  The  law,  doctrine,  and  learn- 
ing of  trusts  thus  had  a  late  origin  and  a  slow  and  gradual 

VOL.    I.  —  1  1 


§  2.]  INTRODUCTION.  [CHAP.   I. 

development.  The  word  "  trust,"  in  its  popular  and  broadest 
sense,  embraces  a  multitude  of  relations,  duties,  and  respon- 
sibilities. Thus,  executors  and  administrators,  guardians  of 
infants  and  lunatics,  assignees  in  insolvency  and  bankruptcy, 
bailees,  factors,  agents,  commission  merchants,  and  common 
carriers,  as  well  as  the  officers  of  public  and  private  corpora- 
tions, all  exercise  a  kind  of  trust.  Indeed,  one  definition  of  a 
trustee  is  "  a  person  in  whom  some  estate,  interest,  or  power 
in  or  affecting  property  of  any  description  is  vested  for  the 
benefit  of  another."  This  definition  embraces  all  the  trusts 
and  offices  above  named,  but  the  law  in  relation  to  many,  if 
not  all  of  them,  is  or  may  be  administered  in  the  common-law 
courts.  It  is  not  of  the  law  of  such  trusts  that  this  treatise 
concerns  itself. 

§  2.  The  trusts  here  treated  are  defined  to  be  "  an  obliga- 
tion upon  a  person  arising  out  of  a  confidence  reposed  in  him 
to  apply  property  faithfully  and  according  to  such  confi- 
dence." 1  Another  author  says  that  "  a  trust  is  in  the  nature 
of  a  deposition  by  which  a  proprietor  transfers  to  another  the 
property  of  the  subject  intrusted,  not  that  it  should  remain 
with  him,  but  that  it  should  be  applied  to  certain  uses  for  the 
behoof  of  a  third  party."  ^  Such  trusts  originated,  and  were 
first  defined  and  reduced  to  practice,  under  the  jurisdiction  of 
courts  by  the  civil  law.  It  was  a  rule  of  that  law  that  a  tes- 
tator could  not  name  a  devisee  to  succeed  the  first  devisee  of 
property,  but  the  first  devisee  took  the  absolute  legal  and 
beneficial  ownership  of  the  property  ;  that  is,  a  testator  could 
not  direct  and  control  the  use  of  his  property  after  his  death. 
This  rule  was  modified  so  far  that  a  testator  might  name  an 
heir  to  succeed,  if  the  first  heir  died  too  young  to  make  a 
will,  but  in  all  other  cases  the  testator  could  only  rely  upon 
the  good  faith  of  the  first  taker  of  his  property,  to  bestow  the 
use  according  to  his  directions.  This  trust  or  confidence  was 
called  fidei  commissum,  but  there  were  no  means  whereby  the 

^  Stair's  Institutions  of  the  Laws  of  Scotland,  B.  IV.  tit.  6,  §  2,  p.  591; 
§  3,  pp.  592-594. 

2  Erskine's  Institutes  of  the  Laws  of  Scotland,  B.  III.  p.  454. 
9 


CHAP.    I.]  ORIGIN   OF  TRUSTS.  [§  3. 

performance  of  the  commission  could  be  compelled.  It  was 
called  infirmum  or  precarium,  because  it  depended  upon  the 
personal  inclination,  integrity,  and  good  faith  of  the  person 
trusted.  There  were  many  of  these  imperfect  trusts,  where 
in  conscience  the  first  taker  was  bound  to  give  the  beneficial 
use,  or  to  transfer  the  property  itself,  to  a  third  person.  Such 
third  persons  had  an  equitable,  moral  claim  or  right,  but  no 
legal  remedy.  Under  these  circumstances,  apj)lication  was 
made  to  the  Emperor  Augustus,  and  he  directed  the  consuls 
to  interpose  their  authority,  and  compel  the  execution  of  such 
trusts.  Finally  a  praetor  was  appointed,  called  Jidei  commis- 
sarius^  who  had  jurisdiction  over  all  Jidei  commissa,  and  full 
power  to  give  adequate  relief  in  all  proper  cases.^ 

§  3.  It  is  supposed  that  these  Jidei  commissa  were  the 
models  of  uses  which  were  afterwards  introduced  into  England 
by  the  clergy  to  elude  and  avoid  the  operation  of  the  statutes 
of  mortmain.  After  the  passing  of  those  statutes,  which  were 
intended  to  forbid  and  prevent  the  accumulation  of  the  lands 
of  the  kingdom  in  the  hands  of  religious  houses  and  corpora- 
tions, it  became  the  practice  to  convey  lands  to  one  person  for 
the  use  of  another,  or  for  the  use  of  a  corporation.  Thus  the 
legal  title  was  in  one  individual,  but  the  beneficial  use  was  in 
another.  At  this  time  the  writ  of  subpoena  was  contrived, 
which  issued  out  of  chancery,  and  compelled  a  person  who 
held  a  legal  title  to  another's  use  to  answer  in  chancery,  and 
to  perform  and  execute  the  use.  Thus  uses  were  introduced 
in  England  to  circumvent  the  public  policy  of  the  kingdom 
and  to  avoid  the  statutes  of  mortmain,  and  the  writ  of  sub- 
poena was  introduced  after  the  model  of  the  jurisdiction  of 
the  prcetor  commissarius  to  prevent  those  persons  who  were 
trusted  to  execute  a  use,  from  committing  a  fraud  in  refusing 
to  perform  it.^     These  contrivances,  originating  in  evasions 

1  Ulpianus,  tit.  25;  Inst.  Lib.  IT.  tit.  23,  §  2;  2  Fonb.  Eq.  p.  2; 
1  Cruise,  Dig.  p.  398;  and  see  Willis  on  Trustees,  pp.  1-8,  and  notes; 
Bacon,  Readings  upon  the  Stat,  of  Uses,  Vol.  XIV.  pp.  301,  302,  Boston 
ed.  18G1. 

2  Att.  Gren.  r.  Sands,  Hard.  491.  "  The  parents  of  trusts  were  fraud 
and  fear,  and  a  court  of  conscience  was  the  nurse.^' 

3 


§  4.]  INTRODUCTION.  [CHAP.    I. 

of  the  law,  -were  laid  hold  of  during  the  civil  wars  of  York 
and  Lancaster  to  facilitate  family  settlements,  and  to  prevent 
the  forfeiture  of  estates  for  treason  during  those  unhappy 
strifes.  Thus  conveyances  to  uses  became  the  common  form 
of  transferring  land,  (a) 

§  4.  Under  this  practice  a  very  refined  system  grew  up. 
The  legal  estate  was  in  one  person,  and  the  use  and  enjoy- 
ment was  in  another.  There  were  two  titles  and  estates  in 
the  same  land,  —  that  of  the  feoffee,  who  was  the  legal  owner, 
and  yet  had  nothing,  and  that  of  the  cestui  que  use,  who  had 
the  whole  beneficial  right  and  interest,  and  yet  had  no  legal 
right  or  title.  He  had  nevertheless  a  substantial  interest  and 
estate  which  he  could  convey,  devise,  and  otherwise  deal  with, 
as  with  tangible  property.  Great  inconveniences  arose  from 
this  double  system.  Bacon's  Abridgment,  Uses  and  Trusts, 
sums  them  up  as  follows :  "  By  this  course  of  putting  lands 
into  uses  there  were  many  inconveniences,  as  this  use,  which 
grew  first  from  a  reasonable  cause,  namely,  to  give  men  the 
power  and  liberty  to  dispose  of  their  own,  was  turned  to  de- 
ceive many  of  their  just  and  reasonable  rights,  as,  namely,  a 

(a)  In  Pollock  &  Maitland's  re-  of  the  charter  will  write  ad  opus 
cent  History  of  the  English  Law,  (Johannis)  or  ad  usum  (Johannis) 
Vol.  II.,  p.  226,  227,  it  is  said:  indifferently,  or  the  fuller  formula 
"The  germ  of  agency  is  hardly  to  ad  opus  et  ad  usum;  nevertheless, 
be  distinguished  from  the  germ  of  the  earliest  history  of  '  the  use '  is 
another  institution  which  in  our  the  early  history  of  the  phrase  ad 
English  law  has  an  eventful  future  opus.  Kow  this,  both  in  France  and 
before  it,  the  'use,  trust  or  confi-  in  England,  we  may  find  in  very 
dence.'  In  tracing  its  embryonic  ancient  days.  .  .  .  In  the  thirteenth 
history,  we  must  first  notice  the  century  we  commonly  find  that 
now  established  truth  that  the  Eng-  where  there  is  what  to  our  eyes  is 
lish  word  use  when  it  is  employed  an  informal  agency,  this  term  ad 
with  a  technical  meaning  in  legal  opus  is  used  to  describe  it.  Out- 
documents  is  derived  not  from  the  side  the  ecclesiastical  sphere,  there 
Latin  word  usus,  but  from  the  Latin  is  but  little  talk  of  *  procuration ; ' 
word  opus,  which  in  old  French  there  is  no  current  word  that  is 
becomes  os  or  oes.  True  that  the  equivalent  to  our  agent."  See  also 
two  words  are  in  course  of  time  I\Ir.  IMaitland's  article  on  the  Origia 
confused,  so  that  ...  the  scribe  of  Uses  in  8  Harv.  L.  Rev.  127. 
4 


CHAP.    I.]  HISTORY   OF   TRUSTS.  [§  6. 

man  that  had  cause  to  sue  for  liis  land  knew  not  against  whom 
to  bring  his  action  nor  who  was  the  owner  of  it.  The  wife 
■was  defrauded  of  her  thirds,  the  husband  of  being  tenant  by 
curtesy,  the  lord  of  his  wardship,  relief,  heriot,  and  escheat, 
the  creditor  of  his  extent  for  debt,  the  poor  tenant  of  his  lease  ; 
for  tliese  rights  and  duties  were  given  by  law  from  him  that 
was  owner  of  the  land,  and  none  other,  which  was  now  the 
feoffee  of  the  trust." 

§  5.  Many  statutes  -were  passed  during  a  scries  of  years  to 
cure  or  to  prevent  these  mischiefs  or  hardslii[)S.  At  last  the 
statute  of  uses,  27  Hen.  VIII.  c.  10,  was  enacted,  which  con- 
verted the  beneficial  use  into  the  legal  ownership ;  that  is  to 
say,  if  lands  were  conveyed  to  A.  to  the  use  of  B.,  the  statute 
executed  or  converted  the  use  into  a  legal  estate  in  B„  and 
divested  all  title  out  of  A.  By  the  operation  of  this  statute 
the  Court  of  Chancery  lost  for  a  time  much  of  its  business  ; 
for  after  the  statute  the  legal  title  as  well  as  the  beneficial 
use  was  in  the  cestui  que  use,  and  he  could  deal  with  his  estate 
as  his  own  in  every  respect ;  he  was  no  longer  compelled  to 
appeal  to  the  conscience  of  the  feoffee  to  uses,  nor  to  the 
equity  powers  of  the  court. 

§  6.  But  there  were  certain  gifts,  grants,  or  estates  to  uses 
which  the  statute  did  not  touch,  and  which  remained  as  before 
the  statute.  Thus,  if  A.  enfeoffed  B.  to  the  use  of  C,  in  trust 
for  D.,  the  statute  immediately  transferred  the  legal  estate  to 
C,  and  extinguished  all  interest  in  B,,  but  it  did  not  touch  or 
affect  the  use  or  trust  for  D.  It  had  been  settled  before  the 
statute,  as  a  rule  of  property,  that  a  use  could  not  be  raised 
upon  a  use.  At  law  such  use  raised  upon  a  use  was  simply 
void.  And  at  law  it  was  held  that  the  statute  extended  only 
to  execute  the  first  use  by  transferring  the  legal  estate  from 
B.  to  C,  and  that  all  its  powers  were  exhausted  in  that  act, 
and  thus  C.  held  a  legal  title  in  trust  or  for  the  use  of  D., 
which  the  statute  did  not  execute.^     And  although   C.  was 

1  Reid  V.  Gordon,  3.5  Md.  183;  Croxall  r.  Shererd,  5  Wall.  2GS ;  Mat- 
thews V.  Ward,  10  G.  &  J.  US. 

5 


§  7.]  INTEODUCTION.  [CHAP.   L 

bound  in  equity  and  good  conscience  to  give  to  D.  the  use  and 
enjoyment  of  the  estate,  there  was  no  remedy  for  D.  at  law, 
and  he  could  only  proceed  as  before  the  statute  by  subpcena 
in  chancery  to  compel  C.  to  perform  the  trust.  Again,  if  A. 
conveyed  land  to  B.  for  a  term  of  years  for  the  use  of  C,  the 
statute  did  not  execute  the  legal  title  in  C,  for  it  was  held, 
under  the  words  of  the  statute,  that  it  only  executed  the  legal 
titles  of  estates  of  which  the  first  taker  was  seized^  and  that 
according  to  the  use  of  the  words  in  the  law  no  one  could  be 
said  to  be  seized  of  a  term  of  years.  Thus  in  this  last  case  C. 
could  have  relief  only  by  subpoena  in  chancery.  And,  again, 
the  statute  did  not  execute  the  legal  title  to  the  cestui  que  use, 
if  the  first  taker  was  to  perform  any  active  duties  in  regard  to 
the  estate  ;  as  if  he  was  to  hold  the  same  for  a  certain  time,  or 
if  he  was  to  improve  or  lease  the  same  and  pay  over  the  rents  and 
profits  to  the  use  of  C,  the  statute  left  the  estate  where  it  was 
before,  and  C.  had  no  redress  for  any  abuse  of  the  trust  or  use 
except  by  subpoena  in  chancery.  And,  further,  the  statute 
did  not  apply  at  all  to  personal  chattels  given  to  one  for  the 
use  and  benefit  of  another.  In  these  four  cases  the  parties 
beneficially  interested  in  the  property,  and  equitably  owning 
the  whole  of  it,  had  no  remedy  at  law  for  any  withholding  of 
their  rights.  The  Court  of  Chancery  laid  hold  of  these  four 
instances  of  a  want  of  redress  at  law,  and  by  its  writ  of  sub- 
poena compelled  the  performance  of  these  four  uses  under  the 
name  of  trusts.  The  legislation  of  our  States  now  recognizes 
trusts,  and  provisions  and  rules  are  made  for  their  creation, 
regulation,  and  duration,  and  in  some  States  for  their  admin- 
istration ;  but  they  are  still  left  to  the  exclusive  cognizance 
and  jurisdiction  of  courts  of  equity,  or  to  the  equity  powers  of 
the  common-law  courts. 

§  7.  Thus  interests  in  land  became  of  three  kinds  :  first, 
the  estate  in  the  land  itself,  the  old  common-law  fee;  secondly, 
the  use,  which  was  originally  a  creature  of  equity,  but  after 
the  statute  of  uses  it  drew  the  estate  in  the  land  to  itself,  so 
that  the  fee  and  use  were  joined  and  made  but  one  legal  estate, 
not  differing  from  the  old  common-law  fee  except  in  the  man- 
6 


CHAP.   I.]  HISTORY   OF  TRUSTS.  [§  8. 

ner  of  its  creation ;  and,  thirdly,  the  trust  of  which  the  com- 
mon law  takes  no  notice,  but  which  in  a  court  of  equity  carried 
the  beneficial  interest  and  profits,  and  is  still  a  creature  of 
that  court,  as  the  use  was  before  the  statute.^  The  statute  of 
uses  has  never  been  repealed,  and  is  still  in  force  in  many  of 
the  United  States,  so  that  if  a  trust  should  now  be  created  in 
such  form  that  the  statute  would  have  executed  it  if  it  had 
been  a  use,  the  statute  will  now  execute  the  trust  by  giving 
the  cestui  que  trust  the  legal  title  as  well  as  the  equitable 
without  any  action  on  the  part  of  the  trustee.^ 

§  8.  It  is  thus  seen  that  our  present  trusts  are  almost  iden- 
tical with  the  old  uscs.^  Of  course  the  growth  of  this  system 
of  jurisprudence  has  been  slow  and  gradual,  and  it  has  some- 
times fallen  into  inconsistencies  and  absurdities  ;  but  the  abil- 
ities of  upright  and  wise  chancellors,  aided  by  a  learned  and 
watchful  profession,  have  finally  given  a  regular  and  simple 
form  to  the  administration  of  trusts.  Lord  Chief  Justice 
Mansfield  observed  that  in  his  opinion  "  trusts  were  not  on  a 
true  foundation  until  Lord  Nottingham  held  the  great  seal. 
By  steadily  pursuing  from  plain  principles  trusts  in  all  their 
consequences,  and  by  some  assistance  from  the  legislature,  a 
noble,  rational,  and  uniform  system  of  law  has  since  been 
raised.  Trusts  are  made  to  answer  the  exigencies  of  families, 
and  all  other  purposes,  without  producing  one  of  the  incon- 
veniences, frauds,  or  private  mischiefs  which  the  statute  of 
Henry  VIIL  c.  10,  was  intended  to  avoid.  The  forum  where 
they  are  adjudged  is  the  only  difference  between  trusts  and 
legal  estates."  *  During  the  development  of  this  system  a  vast 
number  of  distinctions  and  subtleties  have  been  established 
and  exploded.  It  is  not  necessary  to  follow  them,  as  many 
of  them  never  obtained  a  foothold  in  America.^ 

^  Per  Lord  Ilardwicke,  in  "Willet  v.  Sandford,  1  Vea.  18G ;  Coryton  v. 
Helyar,  2  Cox,  342. 

»  Shep.  Touch.  508;  post,  §  20G. 

8  Penny  v.  Allen,  7  De  G.  M.  &  G.  422. 

*  Burgess  v.  Wheate,  1  Eden,  223;  Philips  r.  Brydges,  3  Ves.  127; 
Kemp  V.  Kemp,  5  Ves.  858. 

^  See  them  stated  in  Lewin  on  Trusts,  pp.  2-17. 

7 


§  10.]  INTRODUCTION.  [CIIAP.   I. 

§  9.  Lord  Nottingham  became  chancellor  in  1673 ;  conse- 
quently, when  America  was  first  settled,  the  doctrine  of  trusts 
had  not  been  reduced  to  a  system.  Nor  was  there  occasion 
for  many  years  to  apply  the  doctrine  to  the  affairs  of  the 
colonists.  Lands  were  abundant  and  cheap,  and  could  be 
had  by  the  taking ;  personal  property  had  not  accumulated ; 
habits  of  life  were  simple  and  industrious ;  and  there  was 
little  occasion  for  family  or  other  settlements  that  rendered 
the  intervention  of  a  trustee  either  convenient  or  necessary. 
The  statute  of  uses  was  passed  before  the  colonists  left 
England,  and  it  became  a  part  of  the  law  of  many,  if  not 
all  the  colonies.  The  system  of  trusts  which  grew  upon  the 
statute  of  uses  was  adopted  in  America  much  later.  Even 
in  England  the  development  of  the  equitable  jurisdiction  of 
chancery  met  with  great  opposition,  upon  the  ground,  among 
others,  that  it  subjected  the  laws  of  the  realm  to  the  arbitrary 
discretion  of  one  man,  or  "  made  the  rights  of  the  subject 
depend  upon  the  length  of  the  chancellor's  foot."  Consider- 
ing this  opposition  to  the  equity  jurisdiction  of  the  Court  of 
Chancery  in  England,  considering  that  trusts  were  not  estab- 
lished upon  a  reasonable  foundation  when  the  colonists  left 
England,  and  considering  the  pecuniary  condition  of  America, 
it  is  not  surprising  that  it  was  long  before  the  system  received 
any  countenance  here. 

§  10.  Mr.  Story  says  that  there  was  no  equity  jurisdiction 
in  any  State  prior  to  the  Revolution,  or  at  least  a  very  imper- 
fect and  irregular  administration  of  it.^  There  was  an  attempt 
to  create  such  a  jurisdiction  in  the  province  of  New  York  in 
the  governor  and  council;  but  it  was  so  unpopular ^  that  it 
did  little  or  no  business.  A  court  was  established  in  Massa- 
chusetts in  1692,  with  full  equity  powers ;  but  the  act  failed 
to  receive  the  approval  of  the  king  in  council.^  In  1720  a 
Coui't  of  Chancery  was  established  in  Pennsylvania,  and  con- 

1  1  Story,  Eq.  Jur.  §  56;  1  Dane,  Ab.  c.  1,  art.  7,  §  51;  7  id.  c.  225, 
arts.  1,  2;  2  Swift's  Dig.  15;  3  Tuck.  Black.  App.  7. 

2  1  Jolin.  Ch.,  Preface. 

3  Ancient  Char.  c.  222 ;  1  Story,  Eq.  Jur.  §  5G. 

8 


CHAP.   I.]  HISTORY   OF   TRUSTS.  [§  11. 

tiiiued  to  administer  a  jurisdiction  in  equity  in  a  separate 
court  until  17oG.  And  it  is  probable  that  some  of  the  prin- 
ciples of  equity  were  administered  in  the  common-law  courts 
of  all  the  colonics,  in  order  to  relieve  suitors  from  hardships 
which  the  stricter  rules  of  the  common  law  were  unable  to 
effect.  In  New  York,  New  Jersey,  Virginia,  Pennsylvania, 
and  South  Carolina,  the  governor  of  the  province  was  clothed 
■with  the  power  and  duty  of  the  chancellor.^  Since  the  Revo- 
lution, equity  jurisdiction  as  a  system  has  been  of  slow  growth, 
and  it  is  only  since  the  beginning  of  this  century  that  it  has 
received  its  present  development  in  America.  As  property 
has  increased,  and  pecuniary  affairs  have  become  complex, 
and  it  has  become  necessary  or  convenient  to  make  marriage 
settlements,  or  settlements  upon  families,  children,  relations, 
or  dependants,  and  upon  charities,  the  English  system  of 
trusts,  fully  grown,  has  been  introduced  into  most  of  the 
States,  and  they  have  conferred  full  equity  powers  either 
upon  their  common-law  courts,  or  they  have  established  sep- 
arate courts  with  an  equity  jurisdiction  very  similar  to  the 
jurisdiction  of  the  Lord  Chancellor  in  the  High  Court  of 
Chancery  in  England.^ 

§  11.  Mr.  Story  further  observes  that  it  is  a  favorable 
circumstance  that  jurisdiction  in  equity  was  conferred  upon 
the  courts  in  America  at  so  late  a  period,  and  therefore  they 
did  not  become  acquainted  with  the  system  until  it  had  been 
settled  upon  a  broad  and  rational  foundation  ;  ^  thus  they  were 
saved  from  crude  and  unintelligent  opinions  and  judgments, 
which  must  have  been  given  in  the  then  condition  of  the  law 
in  England,  and  of  the  profession  in  America.  These  judg- 
ments must  of  necessity  have  formed  a  body  of  precedents 
which  would  have  continued  to  plague  the  profession  and  the 
courts,  and  would  have  marred  the  symmetry  of  the  system. 
As  now  established,  the  doctrine  of  equity  and  of  trusts  in 

^  See  Equity  in  Pennsylvania,  a  Lecture  by  William  II.  Kawle,  Esq., 
McKay  &  Brother,  riiiladelphia,  1SG9. 
-  1  Story,  Eq.  Jur.  §  50,  and  notes. 
»  1  Story,  Eq.  Jur.  §  58. 

9 


§  13.]  INTRODUCTION.  [CHAP.    I. 

the  United  States  is  a  well-formed  system ;  and  Mr.  Story 
tliinks  it  even  more  symmetrical  than  the  original  system  in 
England. 

§  12.  It  is  not  the  purpose  of  this  treatise  to  trace  the  rise 
and  growth  of  the  law  of  trusts  in  each  one  of  the  States.  It 
is,  on  the  other  hand,  its  purpose  to  state  the  general  prin- 
ciples which  prevail  in  all  the  States.  It  is  not  possible  to 
know  or  to  state  the  legislation  of  so  many  States  upon  the 
various  matters  connected  with  the  administration  of  trusts. 
The  intelligent  lawyer  must  do  this  for  himself,  when  the 
questions  before  him  depend  upon  the  statutes  of  his  State 
rather  than  upon  the  general  principles  common  to  all  the 
States.^ 

§  13.  Sir  Edward  Coke's  definition  of  a  use  has  been 
adopted  as  an  accurate  legal  description  and  definition  of  a 
trust.  In  his  words  applied  to  a  use,  "  a  trust  is  a  confidence 
reposed  in  some  other,  not  issuing  out  of  the  land,  but  as  a 
thing  collateral,  annexed  in  privity  to  the  estate  of  the  land, 
and  to  the  person  touching  the  land,  for  which  cestui  que  trust 
has  no  remedy  but  by  subpoena  in  chancery."  ^  The  co7ifidenee 
here  spoken  of  need  not  be  expressly  reposed  by  one  party  in 
another,  for  the  law  frequently  implies  or  construes  it  to  arise 
out  of  transactions  between  parties,  when  neither  party  sup- 
posed at  the  time  that  a  trust  was  created  between  them. 
The  trust  or  confidence  is  a  thing  distinguished  from  legal 
property,  or  legal  right  to  property.  It  is  neither  jus  ifi  re 
nor  jus  ad  rem^  and  so  the  confidence  may  not  always  bo  re- 
posed by  a  person  other  than  the  trustee,  for  any  person  may 
convert  himself  into  a  trustee,  and  give  from  his  own  acts  an 

1  See  4  Kent,  Com.  163,  and  notes.  See  Preface  to  Campbell  and 
Cambreleng's  Amer.  Chan.  Dig.  (1828);  1  Fonb.  Eq.  11-20,  by  Laussat, 
1831 ;  1  Amer.  Jurist,  314. 

2  Co.  Litt.  272  b.  A  trust  exists  where  the  legal  interest  is  in  one  per- 
son, and  the  equitable  interest  in  another.  Wallace  v.  Wainwright,  87 
Penn.  St.  263. 

8  Wainewright  v.  Elwell,  1  Mad.  336,  Bac.  Uses,  5. 
10 


CHAP.    I.]  DEFINITION   OF   TRUSTS.  [§  l'^ 

equitable  right  to  another  person,  as  cestui  que  trust.  But  no 
person  can  be  both  trustee  and  cestui  que  trust  at  the  same 
time,  for  no  person  can  sue  a  subpoena  against  liimself. 
Therefore,  if  an  equitable  estate  and  a  legal  estate  meet  in  the 
same  person,  the  trust  or  confidence  is  extinguished,  for  the 
equitable  estate  merges  in  the  legal  estate.  As  when  a  father 
holds  the  legal  title  to  land  in  trust  for  an  only  child,  and  the 
father  dies,  such  legal  title  descends  to  the  child  as  only  heir, 
and  thus  both  estates  meet  in  the  same  jjerson.^  But  both 
estates  must  be  commensurate  "with  each  other,  otherwise 
there  can  be  no  merger.^ 

§  14.  Again,  a  trust  or  confidence  is  something  collateral 
to  the  land,  and  not  part  or  parcel  of  it.  Thus  a  charge,  an 
incumbrance,  or  a  term  of  years  is  a  legal  title  in,  or  issuing 
out  of,  the  land  itself,  and  binds  every  person,  however  he 
may  come  into  possession  of  the  estate.  The  trust  or  confi- 
dence is  an  incident  to  the  land,  and  so  far  collateral  that  it 
does  not  go  inseparably  with  it.  Thus  it  only  charges  those 
who  arc  privy  in  the  estate.  If  the  trustee  is  disseized,  or  if 
he  is  turned  out  of  the  possession  by  a  person  holding  a  para- 
mount title,  the  disseizor  is  not  bound  by  the  trust  or  confi- 
dence, because  there  is  no  privity  of  estate  between  a  disseizor 
and  disseizee.  And  so  there  must  be  privity  between  the  per- 
sons to  be  bound  by  the  trust ;  as,  if  a  trustee  dies,  the  legal 
estate  will  descend  to  his  heir,  who  will  be  bound  by  the  trust, 
because  there  is  both  privity  of  estate  and  of  person  in  such 

1  Goodright  v.  Wells,  Doug.  771 ;  Selby  v.  Alston,  3  Ves.  339 ;  Ilar- 
•wood  V.  Oglander,  S  Ves.  127  ;  Philips  v.  Brydges,  3  Yes.  12G  ;  Wade  v. 
Paget,  1  Bro.  Ch.  363;  1  Cox,  70;  Finch's  Case,  4  Inst.  85,  3d  Res.; 
Creagh  v.  Blood,  3  Jo.  &  La.  133.  So  where  one  of  the  beneficiaries  is 
also  trustee,  to  the  extent  of  such  trustee's  personal  interest.  BoUes  v. 
State  Trust  Co.,  27  N.  J.  Eq.  308. 

a  Philips  V.  Brydges,  3  Ves.  125;  Robinson  v.  Cuming,  T.  Talb.  IGt, 
1  Atk.  473;  Boteler  v.  Allington,  1  Bro.  Ch.  72;  Kendal  r.  Micfeild, 
Barn.  47;  Buchanan  v.  Harrison,  1  John.  &  Hem.  6G2  ;  Habergham  r. 
Vincent,  2  Ves.  Jr.  204;  Merest  v.  James,  6  Mad.  116;  Caiuiing  v. 
Hicks,  2  Ch.  Cas.  187,  1  Vern.  412  ;  Tabor  v.  Grover,  2  Vern.  367,  1  Eq. 
Cas.  Ab.  32S;  Clerkson  v.  Bowyer,  2  Vern.  60,  193. 

11 


§  17.]  INTRODUCTION.  [CHAP.    I. 

a  case.  And  so  if  the  trustee  sell  the  estate  to  a  purchaser 
with  full  notice  of  the  trust  or  confidence,  or  if  he  transfer 
the  estate  to  a  volunteer  without  consideration,  the  estate  and 
the  persons  to  whom  it  comes  in  such  manner  will  be  bound 
by  the  trust,  because  there  is  both  privity  of  estate  and  of 
persons.  But  if  the  trustee  sells  the  estate  to  a  third  person 
for  a  valuable  consideration,  without  notice  of  the  trust, 
neither  the  estate  nor  the  purchaser  for  value  and  without 
notice  will  be  bound  by  the  trust,  for  there  is  in  such  case  no 
privity  between  the  persons.^ 

§  15.  All  those  persons  who  take  under  the  trustee  by  oper- 
ation of  law  are  privies,  both  in  estate  and  in  person,  to  the 
trustee.  Thus  those  who  take  as  heirs  under  the  trustee,  or 
as  tenants  in  dower  or  curtesy,  or  by  extent  of  an  execution,^ 
or  by  an  assignment  in  insolvency  or  bankruptcy,  are  bound 
by  the  trust.  It  has  been  thought  that  a  lord,  who  takes  by 
an  escheat  or  by  a  title  paramount,  would  not  be  bound  by 
the  trust;  but  the  point  has  not  been  adjudged.'^ 

§  16.  The  doctrines  of  trusts  are  equally  applicable  to  real 
and  personal  estate,  and  the  same  rules  will  govern  trusts  in 
both  kinds  of  property. 

§  IT.  The  cestui  que  trust  has  no  remedy  except  hy  subpoena 
in  cJiancery  ;  that  is,  in  some  court  with  an  equity  jurisdiction, 
adequate  to  decree  relief.*  The  cestui  que  trust  cannot  main- 
tain a  real  action  upon  his  equitable  title,  but  such   action 

1  Finch's  Case,  4  Inst.  85,  1st  Res.;  Gilbert  on  Uses,  429. 

2  Leake  v.  Leake,  5  Ir.  Eq.  366. 

3  Burgess  v.  Wheate,  1  Eden,  203. 

4  Stuart  V.  Hellish,  2  Atk.  612;  Allen  v.  Tmlett,  Holt,  641 ;  Holland's 
Case,  Styl.  41;  Queen  v.  Orton,  14  Q.  B.  139;  Vanderstegen  v.  Witham 
6  M.  &  W.  4.57;  Bond  v.  Nurse,  10  Q.  B.  244;  Edwards  v.  Lowndes,  1  El 
&  Bl.  81;  Drake  v.  Pywall,  1  H.  &  C.  78;  Miller's  Case,  Freem.  283 
Witter  V.  Witter,  3  P.  Wms.  102 ;  King  v.  Jenkins,  3  Dow.  &  R.  41 
Edwards  v.  Graves,  Hob.  265 ;  Farrington  v.  Knightly,  1  P.  Wms.  549 
McCartney  r.  Bostwick,  32  N.  Y.  33;  Dorsey  v.  Garcey,  30  Md.  489. 

12 


CHAP.   I.]  DEFINITION   OF   TRUSTS.  [§  17. 

must  be  brought  in  the  name  of  the  trustee.^  There  is,  how- 
ever, this  exception,  the  cestui  que  trunt  may  maintain  a  real 
action  upon  his  equitable  title  against  a  stranger  who  shows 
no  title,  or  no  title  under  the  trustee.'*  But  the  trustee  may 
successfully  defend  the  legal  title  against  a  suit  at  common 
law  by  the  cestui  que  trust  unless  the  trust  has  ceased,  or  the 
trustee  is  enjoined  by  a  court  of  equity .^  And  so  the  grantee 
of  the  trustee  can  defend  such  action,  even  though  the  grant 
may  be  a  breach  of  trust.*  At  one  time  the  common-law 
courts  attempted  to  punish  trustees  for  a  breach  of  trust  in 
damages,  as  upon  an  implied  contract,^  but  the  exercise  of 
such  an  authority  was  soon  abandoned.^  And  the  rule  of 
confining  the  administration  of  trusts  to  the  courts  of  equity 
has  been  carried  so  far  that  the  Court  of  King's  Bench  may 
issue  prohibitions,  forbidding  spiritual  courts  from  inter- 
meddling with  a  trust."  But  a  bill  in  equity  cannot  be  main- 
tained simply  to  establish  the  fact  of  a  trust,  no  other  relief 
being  sought,  even  where  its  existence  is  denied  ;  if,  however, 
the  supposed  trustee  is  about  to  leave  the  jurisdiction,  so  that 
no  relief  could  be  obtained,  the  court  will  entertain  the  bill, 

1  Davis  V.  Charles  River  R.  Co.,  11  Cush.  506;  Raymond  v.  Ilolden, 
2  Cash.  2G8 ;  Chapin  v.  Universalist  Soc,  8  Gray,  581  ;  Crane  v.  Crane, 
4  Gray,  323 ;  Fitzpatrick  v.  Fitzgerald,  13  Gray,  400 ;  Baptist  Soc.  v. 
Ilazen,  100  Mass.  322 ;  Mordecai  v.  Parker,  3  Dev.  425 ;  Cox  v.  Walker, 
20  Maine,  504  ;  Matthews  v.  Ward,  10  G.  &  J.  443  ;  Beach  v.  Beach,  14 
Vt.  28;  Wright  v.  Douglass,  3  Barb.  559;  Moore  r.  Burnet,  11  Ohio,  334; 
Hopkins  v.  Ward,  6  Munf,  38 ;  Daggett  v.  Hart,  5  Fla.  215  ;  Goodtitle  v. 
Jones,  7  T.  R.  47. 

2  Stearns  v.  Palmer,  10  ^let.  35;  Queen  v.  Abrahams,  4  Q.  B.  157; 
Roper  1-.  Holland,  3  Ad.  &  El.  99  ;  Sloper  v.  Cottrell,  2  Jur.  n.  s.  104G. 

'  Obert  V.  Bordine,  1  Spencer,  394 ;  NicoU  v.  Walworth,  4  Denio,  385; 
Stearns  v.  Palmer,  10  Met.  35. 

*  Stearns  v.  Palmer,  10  Met.  35;  Canoy  v.  Troutman,  7  Ired.  155; 
Taylor  i-.  King,  6  Munf.  358  ;  Reece  v.  Allen,  5  Gilm.  241. 

^  Megod's  Case,  Godb.  64;  Jevon  v.  Bush,  1  Veru.  314;  Smith  v. 
Jameson,  5  T.  R.  603,  1  Eq.  Cas.  Ab.  384,  D.  A. 

«  Barnadiston  v.  Soame,  7  St.  Trials,  443 ;  Sturt  v.  Alellish,  2  Atk. 
612  ;  Holland's  Case,  Styl.  41 ;  Allen  v.  Imlett,  Holt,  14  ;  Burnett  v. 
Preston,  17  Ind.  291. 

■f  Petit  V.  Smith,  1  P.  Wms.  7  ;  Edwards  v.  Freeman.  2  P.  Wms.  441  •, 
Barker  v.  May,  4  M.  &  R.  386 ;  Ex  parte  Jenkins,  1  B.  &  C.  655. 

13       - 


§  19.]  INTRODUCTION.  [CHAP.   I. 

and  declare  the  trust  if  proved,  and  retain  the  bill  for  further 
action.!  In  Pennsylvania,  ejectment  is  an  equitable  action, 
and  may  be  maintained  by  the  cestui  que  trust,  even  against 
the  trustee,  when  the  former  is  entitled  to  the  possession.^ 

§  18.  Trusts  are  divided  into  simple  and  special  trusts.  A 
simple  trust  is  a  simple  conveyance  of  property  to  one  upon 
trust  for  another,  without  further  specifications  or  directions. 
In  such  case  the  law  regulates  the  trust,  and  the  cestui  que 
trust  has  the  right  of  possession  and  of  disposing  of  the  prop- 
erty, and  he  may  call  upon  the  trustee  to  execute  such  con- 
veyances of  the  legal  estate  as  are  necessary.  A  special  trust 
is  where  special  and  particular  duties  are  pointed  out  to  be 
performed  by  the  trustee.  In  such  cases  he  is  not  a  mere 
passive  agent,  but  he  has  active  duties  to  perform,  as  when 
an  estate  is  given  to  a  person  to  sell,  and  from  the  proceeds 
to  pay  the  debts  of  the  settlor. 

§  19.  Trusts  have  been  further  divided  into  ministerial  and 
discretionary/  trusts.  A  trust  to  do  a  simple  act,  as  to  con- 
vey to  the  cestui  que  trust,  at  his  request,  is  a  ministerial  trust, 
as  it  is  a  mere  ministerial  or  instrumental  act  requiring  the 
exercise  of  no  judgment  or  discretion ;  but  if  a  choice  of  time, 
manner,  or  place  is  given  to  the  trustee,  or  if  he  must  use 
his  best  judgment  in  the  execution  of  the  trust,  it  is  a  discre- 
tionary trust.^  Mr.  Fearne  contends  that  a  trust  to  sell  is  a 
ministerial  trust,  for  the  price  is  not  arbitrary,  nor  at  the 
trustee's  discretion,  but  is  to  be  the  best  that  can  be  ob- 
tained ;  ^  but  Mr.  Lewin  insists  that  it  is  a  discretionary  trust, 
as  there  is  much  room  for  judgment  in  the  proceeding,^  and  it 

1  Baylies  v.  Payson,  5  Allen,  473 ;  Price  v.  Minot,  107  Mass.  62. 

2  Kennedy  v.  Fury,  1  Dall.  76 ;  Presbyterian  Cong.  v.  Johnston,  1  W. 
&  S.  56;  School,  &c.  v.  Dunkleberger,  6  Barr,  29. 

8  Att.  Gen.  v.  Gleg,  1  Atk.  356;  Cole  v.  Wade,  16  Ves.  27;  Gower  v. 
Mainwaring,  2  Ves.  87;  Hibbard  v.  Lamb,  Arab.  309;  Potter  v.  Chap- 
man, Arab.  98 ;  Att.  Gen.  v.  Scott,  1  Ves.  413,  4  Kent,  Com.  304,  305. 

*  Fearne's  P.  W.  313. 

6  Lewin  on  Trusts,  19;  King  u.  Bellord,  1  Hem.  &  Mil.  343;  Robsou 

14 


CHAP.    I.]  CLASSIFICATION   OF  TRUSTS.  [§  21. 

may  be  added  that  there  is  room  for  skill  in  procuring  the 
best  possible  price.  But  the  distinction  is  not  very  impor- 
tant, as  the  duties  of  a  trustee  for  sale  are  the  same,  whether 
the  trust  is  called  ministerial  or  discretionary. 

§  20.  There  is  a  mixed  trust  and  pou'er^  as  where  the 
settlor  sketches  the  outline  of  a  trust  and  leaves  the  details 
to  be  settled  and  carried  into  effect,  according  to  the  best 
judgment  of  his  trustees.  The  power  joined  to  the  trust  in 
such  case  is  imperative  and  must  be  exercised  ;  but  the  mode 
of  its  execution  is  a  matter  of  judgment  and  discretionary. 
But  this  kind  of  trust  and  power  is  not  to  be  confounded 
with  a  trust  to  ivhieh  a  power  is  annexed.  In  this  case  the 
trust  is  complete  in  itself,  and  the  power  is  a  simple  addition, 
■which  may  or  may  not  be  exercised,  as  the  trustee  shall 
choose,  as  where  lands  are  given  to  trustees  for  a  particular 
purpose,  and  a  power  of  sale,  or  of  changing  the  securities,  is 
added ;  the  power  is  no  part  of  the  trust,  but  it  is  something 
collateral,  which  the  court  cannot  compel  the  trustee  to  per- 
form. But  a  trust  to  distribute  the  trust  fund  according  to 
the  discretion  of  the  trustee  is  an  imperative  trust  and  power.^ 

§  21.  Trusts  are  also  said  to  be  legal  or  illegal.  Trusts 
are  legal  when  they  are  for  some  honest  purpose,  as  to  pay 
debts  or  make  a  provision  for  families.  They  are  illegal  when 
they  are  for  purposes  of  immorality,  or  vice,  or  of  defrauding 
creditors,  or  contravene  some  statute,  or  are  contrary  to  public 
policy.  In  such  case  a  court  of  equity  will  not  give  its  aid  in 
carrying  them  into  execution.^  (a) 

V.  Flight,  5  X.  R.  344;  4  De  G.,  J.  &  S.  608 ;  Clarke  v.  Royal  Panopticon, 
4  Drew.  29. 

1  Cole  V.  Wade,  16  Ves.  43;  Gower  v.  Mainwaring,  2  Ves.  89;  Steere 
V.  Steere,  5  John.  Ch.  1. 

^  Bacon  on  Uses,  9;  Lewis  v.  Nelson,  14  N.  J.  Eq.  94. 

(a)  Thus,  a  bill  in  equity  for  an    seceding    States   during   the    Civil 
account  cannot  be  maintained  by  a    "War.     Snell  i'.  Dwight,  120  Mass. 
partner  against  his  co-partners  as  to    9;  Dunham  v.  Presby,  id.  285. 
transactions  with  inhabitants  of  the         The  combinations  or  "trusts" 

15 


§23.] 


INTRODUCTION. 


[chap.  I. 


§  22.  Again,  trusts  are  either  public  or  private.  Private 
trusts  concern  only  individuals  or  families,  for  private  con- 
venience and  support.  Public  trusts  are  for  public  charities 
or  for  the  general  public  good.  They  concern  the  general 
and  indefinite  public. 

§  23.  Private  trusts  which  concern  individuals  are  limited 
in  their  duration.  Being  for  individuals,  they  must  be  certain, 
and  the  individual  or  individuals  must  be  identified  within  a 
limited  period.     They  can  endure  only  for  a  life  or  lives  ^  in 

1  It  is  immaterial  whether  the  designated  lives  are  thosd  of  the  bene- 
ficiaries or  others.     Crooke  v.  King's  County,  97  N.  Y.  421. 

The  Act  of  Congress  of  July  2, 
1890,  ch.  647  (26  Stat,  at  Large, 
209),  known  as  "  The  Sherman  Anti- 


that  have  sprung  up  in  recent  years, 
for  the  purpose  of  controlling  prices 
by  uniting  all  those  engaged  in  any 
great  industry,  are  in  strictness  il- 
legal as  amounting  to  monopolies. 
See  e.  g.,  People  v.  Chicago  Gas 
Trust  Co.,  130  111.  268 ;  IMore  v. 
Bennett,  140  111.  69;  Bishop  v. 
American  Preservers'  Co.,  157  111. 
284  ;  People  v.  North  River  Sugar 
Ref.  Co.,  121  N.  Y.  582;  Bath  Gas 
Light  Co.  V.  Claffy,  151  N.  Y.  24, 
43;  State  v.  Standard  Oil  Co.,  49 
Ohio  St.  137 ;  United  States  v. 
Addyston  Co.,  78  F.  R.  712  ;  24 
Am.  Law  Rev.  143 ;  29  id.  293  ;  33 
id.  63, 142 ;  30  Am.  Law  Reg.  x.  s. 
751;  7  Harv.  L.  Rev.  338;  11  id. 
80.  The  holder  of  certificates  of 
such  a  "  trust,"  which  bind  him  to 
the  terms  of  its  formation,  so  far 
participates  in  its  illegality  that  he 
cannot  maintain  a  bill  in  equity 
against  its  trustees  for  an  account- 
ing. Unckles  v.  Colgate,  148  N.  Y. 
529.  But  forfeiture  of  a  corporate 
charter  for  this  cause  can  be  en- 
forced only  by  the  State.  Coquard 
V.  National  Linseed  Oil  Co.,  171 
Bl.  480;  Blindell  v.  Hagan,  54  F. 
R.  40  ;  Greer  v.  Stoller,  77  id.  1. 
16 


Trust  Act,"  and  entitled  "  An  Act 
to  protect  trade  and  commerce 
against  unlawful  restraints  and  mo- 
nopolies," has  been  held  by  the 
United  States  Supreme  Court  not 
to  apply  to  a  combination  of  corpo- 
rations whose  primary  business  is 
that  of  manufacturing  rather  than 
of  selling,  such  a  combination  being 
regarded  as  within  the  police  power 
of  the  States,  and  not  as  infringing 
upon  interstate  commerce.  United 
States  V.  E.  C  Knight  Co.,  156  U.  S. 
1  ;  s.  c.  60  F.  R.  306,  934;  Lowen- 
stein  u.  Evans,  69  F.  R.  908.  The 
act  is  constitutional.  United  States 
V.  Joint  Traffic  Ass'n,  171  U.  S.  505; 
and  applies  to  all  contracts  in  re- 
straint of  interstate  commerce,  irre- 
spective of  their  reasonableness. 
United  States  v.  Trans-Missouri 
Freight  Ass'n,  162  U.  S.  290.  The 
remedy  of  a  private  citizen  injured 
by  a  violation  of  this  statute  is  by 
action  at  law  for  damages,  and  not 
by  a  bill  in  equity.  Southern  Indi- 
ana Express  Co.  v.  U.  S.  Express 
Co.,  88  F.  R.  659. 


CHAP.    I.]  CLASSIFICATION    OF   TKUSTS.  [§  25. 

being,  and  twenty-one  years  and  the  period  of  gestation  in 
addition.'  On  the  other  hand,  j)iit»lic  trusts  or  charities,  ex- 
isting for  the  general  and  indehnite  publie,  may  continue  for 
an  indehnite  period.'^  It  must  be  kept  in  mind,  howevur,  that 
this  rule  against  perpetuities  only  applies  to  cases  in  which 
the  power  of  alienation  is  suspended,  and  that  tlie  creation  of 
a  trust  does  not  necessarily  result  in  such  suspension,  for  the 
trustee  may  have  the  right  to  alienate,^  and  that  the  terms 
of  the  law  arc  not  everywhere  the  same.  For  example,  in 
New  York  the  ownership  of  ^;t'rso«aZ  property  cannot  be  sus- 
pended for  more  than  two  lives,  while  the  alienation  of  real 
estate  may  be  suspended  for  two  lives  and  a  minority.* 

§  24,  Trusts  are  divided  in  reference  to  their  creation  into 
express  trusts,  implied  trusts,  resulting  trusts,  and  construc- 
tive trusts.^  Express  trusts  are  also  called  direct  trusts. 
They  are  generally  created  by  instruments  that  point  out 
directly  and  expressly  the  property,  persons,  and  |)urposes  of 
the  trust;  hence  they  arc  called  direct  or  exj)ress  trusts  in 
contradistinction  from  those  trusts  that  are  implied,  presumed, 
or  construed  by  law  to  arise  out  of  the  transactions  of  parties. 
They  may  be  discretionary  or  imperative,  absolute  or  on  con- 
dition.^ As  express  trusts  are  directly  declared  by  the  par- 
ties, there  can  never  be  a  controversy  whether  they  exist  or 
not.  In  such  trusts  these  questions  arise  :  Are  they  legal  or 
illegal,  and  what  is  the  construction  of  the  various  terms  and 
provisions  which  they  contain  ? 

§  25.  Implied  trusts  are  trusts  that  the  courts  imply  from 
the  words  of  an  instrument,  where  no  express  trust  is  de- 

1  Rice  V.  Barrett,  102  N.  Y.  IGl. 

"^  Christ's  Hospital  v.  Grainger,  1  Mac.  &  G.  4G0;  Att.  Gen.  v.  Aspi- 
nall,  2  M.  &  Cr.  022;  Att.  Gen.  v.  Ileelis,  2  S.  &  S.  7G  ;  Att.  Gen.  v. 
Shrewsbury,  G  Beav.  220;  AValker  v.  Richardson,  2  M.  &  \\ .  892.  See 
Att.  Gen.  v.  Forster,  10  Ves.  3-11;  Att.  Gen.  v.  Newcombe,  14  Ves.  1; 
Fearon  v.  Webb,  11  Ves.  19. 

8  Robert  v.  Corning,  89  N.  Y.  225. 

*  Cook  V.  Lowry,  29  Ilun,  2S. 

^  See  the  definitions  in  Russell  i-.  Peyton,  4  Brad.  (111.)  473. 

•  Little  ('.  Wilcox,  119  Teuu.  St.  439. 

VOL.     I.  —2  17;. 


§  27.]  INTKODUCTION,  [CHAP.   I. 

clared,  but  such  words  are  used  that  the  court  infers  or  implies 
that  it  was  the  purpose  or  intention  of  the  parties  to  create  a 
trust. 

§  26.  Resulting  trusts  are  trusts  that  the  courts  presume 
to  arise  out  of  the  transactions  of  parties,  as  if  one  man  pays 
the  purchase-money  for  an  estate,  and  the  deed  is  taken  in 
the  name  of  another.  Courts  presume  that  a  trust  is  in- 
tended for  the  person  who  pays  the  money. 

§  27.  A  constructive  trust  is  one  that  arises  when  a  person, 
clothed  with  some  fiduciary  character,  by  fraud  or  otherwise 
gains  some  advantage  to  himself.  Courts  construe  this  to  be 
an  advantage  for  the  cestui  que  trust  or  a  constructive  trust. 


18 


CHAP.  II.]         PARTIES  TO  TRUSTS,  ETC. 


CHAPTER  IT. 

PARTIES    TO    TRUSTS  ;    AND    WHAT    TROPERTY    MAY    RE   THE 
SUBJECT    OK    A    TRUST. 

I.  §§  28-37.  "Who  may  create  a  tnist. 

§  28.  All  persous  competent  to  contract  or  make  wills  may  create 

trusts. 

§  29.  The  king  m.iy  create  trusts. 

§  30.  The  State  may  create  trusts  ;  and  so  may  all  its  officers. 

§  31.  Corporations  may  create  trusts. 

§  32.  The  power  of  married  women  to  create  trusts. 

§  33.  Capacity  ami  power  of  infants  to  create  trusts. 

§  34.  The  marriage  settlements  of  infants. 

§  35.  Of  the  ability  of  lunatics  to  create  trusts. 

§  36.  Of  conveyances  in  trust  by  aliens. 

§  37.  Trusts  by  bankrupts  aud  insolvents. 

II.  §§  38-59.  "Who  may  be  a  trustee. 

§  38.  A  person  may  convert  himself  into  a  trustee. 

§  39.  Any  person  capable  of  taking  tlie  legal  title  may  take  a« 
trustee.     Rules  that  govern  courts  in  appointing  trustees. 

§  40.  The  sovereign  may  be  trustee.     Question  as  to  remedy. 

§  41.  Tlie  United  States  and  the  several  States  may  be  trustees. 

§§  42^5.  Corporations  may  be  trustees. 

§  46.  Unincorporated  societies  may  be  trustees  for  charitable  pur- 
poses. 

§  47.  I'ublic  officers  as  trustees. 

§§  48-51.  Married  women  as  trustees. 

§§  52-54.  Infants  as  trustees. 

§  55.  Aliens  as  trustees. 

§  56.  Lunatics  as  trustees. 

§  57.  A  religions  person  or  nun  as  trustee. 

§  58.  A  bankrupt  as  trustee. 

§  59.  Cestui  que  trust  may  be  a  trustee  for  himself  aud  others. 

III.  §§  G0-G6.     Who  may  1)C  cestui  que  trust. 

§  CO,  All  persons  may  be  cestuis  que  trust  wlio  may  take  tlie  legal 

title. 
§§  61,  62.  Tlie  Crown  and  the  State  may  be  cestuis  que  trust. 

§  63.  Corporations  as  cestuis  que  trust. 

§  G4.  Aliens  as  cestuis  que  trust. 

§  65.  Those  who  cannot  take  a  legal  interest  cannot  take  an  equi- 

table interest. 
§  66.  E.xcept  in  certain  charitable  trusts. 

19 


§  30.]  PARTIES   TO   TPwUSTS,    ETC.  [CHAP.   II. 

IV.  §§  G7-72.     "What  property  may  be  the  subject  of  a  trust. 

§  67.  A  trust  may  be  created  iu  every  kind  of  valuable  property. 

§  68.  Possil)ilities,  choses  in  action,  expectancies,  aud  property  not 

at  the  time  /«  esse  may  be  assigned  iu  trust. 
§  69.  Glioses  in  action  and  expectancies  that  cannot  be  assigned  in 

trust. 
§§  71,  72.  Trusts  in  land  lying  in  a  foreign  jurisdiction,  and  their  ad- 

administration. 

I.     WTio  may  create  a  Trust. 

§  28.  It  may  be  stated,  as  a  general  proposition,  that  every 
one  competent  to  enter  into  a  contract,  or  to  make  a  will,  or 
to  deal  with  the  legal  title  to  property,  may  make  such  dis- 
position of  it  as  he  pleases ;  and  he  may  annex  such  condi- 
tions and  limitations  to  the  enjoyment  of  it  as  he  sees  fit; 
and  he  may  vest  it  in  trustees  for  the  purpose  of  carrying  out 
his  intention.  All  persons,  sui  juris,  have  the  same  power  to 
create  trusts  that  they  have  to  make  a  disposition  of  their 
property.  A  conveyance  or  disposition  of  property  by  persons 
not  sui  juris  is  valid  to  the  extent  of  their  legal  capacity. 

§  29.  The  king  may,  by  charter,  grant  his  private  property 
to  one  person  upon  trust  for  another.^  But  the  trust  must 
appear  upon  the  face  of  the  patent,  and  cannot  be  proved  by 
parol.2  He  can  also  by  will  in  writing  under  the  sign-manual 
bequeath  his  private  personal  property  to  trustees  for  the  use 
of  another.^  He  may  by  warrant  grant  prizes  taken  in  war  to 
trustees,  to  be  distributed  among  the  captors,^  and  by  statute 
he  is  authorized  to  convey  trust  property  which  has  escheated 
to  the  Crown  to  trustees  to  execute  the  trust.^ 

§  30.  In  the  United  States  the  sovereignty  resides  in  the 
organized  people ;    and   all    public  officers    are    subjects  and 

1  Bacon  on  Uses,  66. 

2  Fordyce  v.  Willis,  3  Bro.  Ch.  577. 

8  39  &  40  Geo.  III.  c.  88.  But  it  is  said  that  probate  of  his  will  can 
not  be  granted.     Williams's  Ex'rs,  13. 

*  Alexander  v.  Duke  of  Wellington,  2  R.  &  M.  35 ;  Stevens  v.  Bag- 
well, 15  Ves.  140.  But  it  is  said  that  the  cestui  que  trust  cannot  maintain 
a  suit  against  the  trustees  in  such  cases. 

6  39  &  40  Geo.  III.  c.  88. 
20 


CHAP.   II.]  MARRIED   WOMEN.  [§  32. 

citizens,  and  they  can  convey  their  private  property  to  trus- 
tees ill  the  same  manner  as  {)rivate  individuals.  The  State 
itself  by  its  legislation,  or  by  its  public  oflicers  duly  authorized, 
can  create  a  trust,  convey  property,  and  appoint  trustees ;  ' 
and  such  trustees  are  equally  amenable  to  the  jurisdiction  of 
chancery.'^  But  a  State  cannot  remove  the  trustees  of  a  pri- 
vate corporation  and  aj)point  others  in  their  stead.^ 

§  31.  All  corporations,  subject  to  the  terms  of  the  charters 
and  laws  under  vrhich  they  exist,  may  alienate  their 
property;  and  their  power  to  appoint  trustees  and  to  declare 
in  what  manner  the  property  shall  be  enjoyed,  is  coextensive 
with  the  right  of  alienation.* 

§  32.  By  the  civil  law  married  women  could  alienate  their 
property  and  dispose  of  it  by  will.  By  the  common  law  they 
were  almost  wholly  incapacitated  from  dealing  with  their 
estates.  The  tendency  of  modern  legislation  is  to  remove 
these  disabilities,  and  to  enable  them  to  make  contracts  and 
wills,  as  if  they  were  sole,  in  relation  to  prop(n-ty  held  by 
them  in  their  own  right.  By  joining  their  husbands  in  fines 
and  recoveries  in  England,^  and  in  deeds  in  America  executed 
according  to  the  prescribed  formalities,  they  can,  as  a 
general  rule,   convey  their  property  to   trustees.^     In   those 

1  Commissioners  v.  Walker,  6  IIow.  (Miss.)  1-13. 

^  Cotterel  v.  Ilampson,  2  Vern.  5 ;  Buchanan  i;.  Hamilton,  5  Yes.  722. 

'  State  V.  Bryce,  7  Ohio,  411  ;  Dart.  College  i'.  Woodward,  4  Wheat. 
518. 

*  Colchester  v.  Lowten,  1  V.  &  B.  22G;  Att.  Gen.  r.  Aspinall,  2  :\r.  & 
Cr.  Glo  ;  Att.  Gen.  v.  Wilson,  1  Cr.  &  Ph.  1 ;  Catlin  v.  Eagle  Bank,  6 
Conn.  23.3 ;  State  of  IMaryland  v.  Bank  of  Maryland,  6  Gill  &  J.  205  ; 
Dana  v.  Bank  of  United  States,  5  W.  &  S.  224;  Arthur  v.  Comm.  Bank, 
9  S.  &  U.  394;  Barry  r.  Merchants'  Exch.  Co.,  1  Sand.  Ch.  2S0  ;  Hopkins 
V.  Turnpike  Co.,  4  Humph.  403  ;  Reynolds  v.  Stark  County, .")  Ham.  2(»4; 
Angell  on  Corp.  §  l!)l  ;  Barings  v.  Dabney,  19  Wall.  1.  In  England, 
municipal  corporations  are  declared  by  statute  to  be  trustees  of  their  real 
and  personal  estate,  and  they  are  debarred  from  alienating  it  without  the 
consent  of  the  Lords  of  the  Treasury.     5  &  0  Wm.  IV.  c.  70,  §  94. 

6  :)  &  4  Wm.  IV.  c.  74. 

•^  Durant  v.  Ritchie,  4  Mason,  45.  And  they  can  make  mortgages  of 
their  jiroperty  with  powers  of  sale.     Young  r.  Graff,  28  111.  20. 

21 


§  32.]  PARTIES   TO   TRUSTS,   ETC.  [CHAP.    II. 

States  where  a  married  woman  can  convey  her  real  and 
personal  property  without  joining  her  husband,  she  can  con- 
vey it  to  trustees  to  such  uses  as  she  may  appoint;  and 
where  statutes  have  given  her  a  testamentary  capacity,  she 
can  create  trusts  and  appoint  trustees  by  her  will.^  A  mar- 
ried woman  is  considered  in  all  respects  as  a  feme  sole  in 
regard  to  property  settled  to  her  separate  use;^  as  if  real 
estate  is  conveyed  to  a  trustee  and  his  heirs,  or  if  personal 
estate  is  assigned  to  a  trustee  and  his  executors,  for  her  sole 
and  separate  use,  the  absolute  interest  to  be  at  her  sole  dis- 
posal, she  has  the  entire  control,  and  may  exercise  her 
ownership  or  implied  power  of  appointment  by  creating  a 
trust  extending  even  beyond  her  coverture.^  If  she  is  tenant 
for  life,  to  her  sole  use,  she  can  make  a  settlement  of  her 
life-estate.  But  if  the  power  of  anticipation  is  restrained, 
she  can  make  no  disposition  except  of  the  annual  produce 
which  has  actually  accrued  or  become  due.  A  married 
woman  will  be  treated  as  a  feme  sole  only  in  regard  to 
property  settled  upon  her;  and  her  power  of  disposing  of 
property  thus  settled  will  be  governed  by  a  strict  interpreta- 
tion of  the  instrument  of  settlement.  If  the  deed  of  settle- 
ment points  out  the  manner  in  which  she  may  dispose  of  her 
interest,  she  must  follow  that  particular  manner;  as  if  the 
power  is  given  her  to  convey  or  appoint  by  deed,  she  cannot 
convey  or  appoint  by  will;  and  if  by  will,  she  cannot  convey 
by  deed.  If  the  instrument  is  silent  as  to  her  power  to 
convey,  she  may  devise  the  property  by  will.*  Savings  by  a 
wife  out  of  an  allowance  made  by  her  husband  for  her  sepa- 
rate maintenance  are  treated  in  equity  as  her  separate  estate, 
which  she  may  dispose  of;^  and  so  are  the  accumulations 

1  1  Redfield  on  Wills,  pp.  21-28. 

2  Lewin  on  Trusts,  p.  23  (5th  London  ed.);  Hill  on  Trustees,  p.  421 
(4th  Amer.  ed.). 

3  The  English  rule  is  stated  in  the  text.  The  courts  in  some  of  the 
United  States  follow  the  same  rule;  in  others  a  different  rule  is  estab- 
lished. All  the  distinctions  are  stated,  and  the  authorities  collected  in 
the  chapter  upon  Trusts  for  Married  Women. 

*  Mory  V.  IMichael,  18  Md.  227. 
6  Brooke  v.  Brooke,  25  Beav.  342. 
2?- 


CHAP.    II.]  INFANTS.  [^  33. 

and  savings  from  tlie  income  of  a  trust  for  her  sole  benefit.' 
lint  savings  from  [lin-money  allowed  by  the  husband  for  the 
personal  expenses,  clothing,  and  adornment  of  the  wife, 
revert  to  the  husband,  and  the  wife  cannot  disjjosc  of 
them.  2  i^a) 

§  33.  Infants  can  create  trusts  which  are  good  until  they 
are  avoided.*^  The  tendency  of  modern  decisions  is  to  hold 
that  the  acts  and  contracts  of  infants  are  voidalile  only,  and 
8ul)jcct  to  their  election  when  of  age  either  to  avoid  or  con- 
firm them.*  Mr,  Greenleaf  says  that  "  it  may  be  safely 
stated  as  the  result  of  the  American  authorities,  that  the  act 
or  contract  of  an  infant  is  in  no  case  to  be  held  purely  void, 
unless  from  its  nature  and  solemnity,  as  well  as  from  the 
operation  of  the  instrument,  it  was  manifestly  and  neces- 
sarily prejudicial  to  hira.  Wherever  it  mai/  be  for  his 
benefit,  it  is  at  most  but  voidable;  and  if  it  be  an  act  which 
it  was  cither  his  duty^  to  do,  or  was  manifestly  for  his  l)ene- 
fit,  it  shall  bind  him."^  Eut  a  court  of  equity  would  not 
allow  an  equitable  interest  to  be  enforced  against  an  infant 
to  his  prejudice,  and  would  give  him  the  same  power  of 
avoidance  over  the  equitable,  as  over  the  legal  estate.  And 
if  the  infant  died  without  having  avoided  the  trust,  the  court 

1  Story,  Eq.  Jur.  §  1375 ;  Frazier  i;.  Center,  1  IMcCord,  Eq.  270 ;  Pic- 
quet  t'.  Swan,  4  Mason,  455. 

2  Jodrell  V.  Jodrell,  9  Beav.  45;  Story,  Eq.  Jur.  §  1375  a. 

'  Co.  Litt.  248  a;  Hearle  v.  Greeubank,  1  Ves.  304 ;  Ownes  v.  Ownes, 

8  C.  E.  Green,  60;  Zouch  v.  Parsons,  3  Burr.  1704;  Bool  v.  Mix,  17 
Wend.  110;  Eagle  F.  Ins.  Co.  v.  Lent,  G  Paige,  635;  Tucker  v.  More- 
land,  10  Pet.  71,  2  Kent,  234  ;  Gillett  v.  Stanley,  1  Hill,  121. 

*  2  Kent,  235;  Tucker  v.  Moreland,  10  Pet.   58,  71;  Irvine  r.  Irvine, 

9  Wall.  617. 

6  Zouch  V.  Parsons,  3  Burr.  1704,  2  Kent,  234-236;  People  v.  Moores, 
4  Denio,  518;   IMcCall  v.  Parker,  13  Met.  372. 

'  4  Cruise,  Dig.  by  Greenleaf,  p.  15,  note,  and  authorities  cited  ;  Eagle 
Fire  Co.  v.  Lent,  1  Edw.  Ch.  301  ;  6  Paige,  635. 

(a)  The   English    Married    Wo-    phernalia.        Tasker     v.      Ta.sker, 
men's  Property  Act  of  1S82  did  not     [1805]  P.  1.    See  30  Am.  Law  Rev. 
have    the    effect   of   abolishing  the     557. 
common-law  rule  as  to  gifts  of  para- 

23 


§  34]  PAKTIES   TO   TRUSTS,    ETC.  [CHAP.    II. 

will  still  investigate  the  transaction  and  see  that  no  unfair 
advantage  was  taken.  ^  But  if  the  infant  is  still  alive,  no 
one  but  himself  can  object  to  his   deed.^ 

§  34.  The  effect  of  a  marriage  settlement  by  a  female 
infant,  bj  which  her  real  and  personal  estate  is  conveyed  to 
trustees,  has  been  frequently  mooted  in  courts.  It  has  been 
decided  that  as  infants  may  contract  marriage,  a  settlement 
made  by  the  consent  of  their  parents  and  guardians  in  con- 
sideration of  a  marriage  to  be  afterwards  solemnized,  should 
be  binding,  inasmuch  as  if  the  marriage  afterwards  takes 
place,  the  situation  of  the  parties  is  altered,  and  the  interests 
of  third  persons,  or  children  born  of  the  marriage,  may  be 
affected.  Lord  Macclesfield  and  Lord  Hardwicke  upon  these 
considerations  refused  to  disturb  such  settlements.'^  But 
Lord  Thurlow  dissented  from  these  opinions;*  and  the  law 
is  now  settled,  that  a  deed,  executed  by  a  female  infant  in 
consideration  of  marriage,  does  not  bind  her  real  estate, 
unless,  having  come  of  age,  she  assents  to  it  after  the  death 
of  her  husband.^  There  is  no  reason  why  the  marriage 
settlement  of  a  male  infant  should  not  be  governed  by  the 
same  rule,  except  that  he  could  confirm  the  same  after  he 
became  of  age,  and  before  the  death  of  his  wife.  The  settle- 
ment will  bind  the  husband  if  he  is  of  full  age.^     It  has  been 

1  Le-win  on  Trusts,  p.  25 ;  4  Cruise,  Dig.  p.  130 ;  Starr  v.  Wright,  20 
Ohio  St.  97. 

2  Ingraham  v.  Baldwin,  12  Barb.  9,  19. 

8  Cannel  v.  Buckle,  2  P.  Wms.  243;  Harvey  v.  Ashley,  3  Atk.  607; 
Tabb  V.  Archer,  3  Hen.  &  M.  399 ;  Healy  v.  Rowan,  5  Gratt.  414 ;  Lester 
V.  Frazer,  Riley,  Ch.  76  ;  2  Hill,  Ch.  529. 

*  Durnford  v.  Lane,  1  Bro.  Ch.  106. 

5  ]\lilner  v.  Lord  Harewood,  IS  Ves.  259;  Trollope  v.  Linton,  1  Sim. 
&  Stu.  477  ;  Simson  v.  Jones,  2  Russ.  &  My.  365 ;  Temple  v.  Hawley,  1 
Sand.  Ch.  153;  Dominick  v.  Michael,  4  Sand.  374;  Levering  v.  Levering, 
3  Md.  Ch.  365;  Shaw  v.  Boyd,  5  S.  &  R.  312;  Wilson  v.  McCullogh,  19 
Pa.  St.  77;  Healy  i;.  Rowan,  5  Gratt.  414;  In  re  Waring,  12  Eng.  L. 
&  Eq.  351 ;  Cave  v.  Cave,  15  Beav.  227,  19  Eng.  L.  &  Eq.  280 ;  Field  v. 
Moore,  7  De  G.,  M.  &  G.  691 ;  35  Eng.  L.  &  Eq.  498 ;  Lee  v.  Stuart,  2 
Leigh,  76. 

6  Whichcote  v.  Lyle's  Ex'rs,  28  Pa.  St.  73 ;  Levering  v.  Heighe,  2  Md. 
Ch.  81. 

24 


CHAI'.   II.]  LUNATICS.  [ 


settled,  however,  after  considerable  conflict,  that  a  female 
infant  may  bar  herself  of  dower  and  of  a  distributive  share 
in  her  husband's  estate,  by  accepting  a  jointure  before  mar- 
riage.^ And  she  may,  before  marriage,  make  a  binding 
settlement  of  her  personal  estate,  fur  such  a  settlement  will 
be  for  her  benefit,  otherwise  it  would  vest  in  the  husband, 
and  it  would  in  effect  be  his  scttlcnient  and  not  hcrs;^  but 
such  settlement  is  not  good  of  chattels  that  would  not  go  to 
the  husl)and.  It  is  now  settled  in  England  by  statute  that  a 
male  infant  over  twenty  years  of  age  and  a  female  over 
seventeen  may  make  a  valid  marriage  settlement  of  their 
real  and  personal  estates,  under  the  sanction  of  the  Court  of 
Chancery.^ 

§  35.  It  was  a  maxim  of  the  common  law,  that  no  man  of 
full  age  could  be  allowed  to  stultify  himself ;  hence  the  acts, 
deeds,  and  feoffments  of  idiots  and  lunatics  were  held  to  be 
binding,  and  not  voidable  by  the  jjarty  himself,  though  they 
could  be  avoided  by  his  heirs,  executors,  or  administrators.* 
This  maxim  never  prevailed  in  the  United  States,  and  is 
not  now  the  law  of  England.  The  conveyance  of  a  lunatic 
is  not,  however,  absolutely  void,  but  only  voidable  by  him- 
self as  well  as  by  his  friends  and  representatives.^  But  after 
inquisition  declaring  him  incompetent,  all  contracts  made 

1  Drury  r.  Drury,  2  Eden,  ■]D  ;  Buckinghamshire  v.  Drury,  2  Eden,  CO- 
75  ;  aicCartee  v.  Teller,  2  Paige,  511. 

2  Duniford  r.  Lane,  1  Bro.  Ch.  Ill  ;  Levering  v.  Levering,  3  ]\Id.  Ch. 
305;  Field  v.  Moore,  7  De  G.,  M.  &  G.  691;  Ainslie  v.  .Aledycott, 
9  Ves.  19;  Stamper  v.  Barker,  5  Mad.  134;  Williams  v.  Chitty,  3  Ves. 
551  ;  Johnson  t-.  Smith,  1  Ves.  315;  Simson  v.  Jones,  2  Russ.  &  My. 
305  ;  Succession  of  Wilder,  22  La.  An.  219. 

8  18  &  19  Vict.  c.  13.     1S55.     See  Edwardsr.  Carter,  [1893]  A.  C.  360. 

*  Co.  Litt.  247  b. 

^  Allis  V.  Billings,  6  Met.  415;  Breckenridge  i;.  Ormsby,  1  J.J.  Marsh. 
2-19  ;  Price  v.  Barrington,  3  IMac.  &  G.  480  ;  Moulton  v.  C'aniroux,  2 
Exch.  487;  4  Exch.  17;  Milner  v.  Turner,  4  Monr.  245;  Ballcw  v.  Clark, 
2  Ired.  23  ;  Ovving's  Case,  1  Bland.  370;  Elliot  v.  Ince,  7  De  G..  M.  & 
G.  488  ;  Campbell  v.  Hooper.  3  Sm.  &  Giff.  153;  Wait  r.  Maxwell,  5 
Pick  217;  Mitchell  v.  Kingman,  id.  431 ;  Snowdeu  v.  Dunlavey,  11  Penu. 
St.  522. 

25 


§    37.]  PARTIES    TO    TRUSTS,    ETC.  [CIIAP.    II. 

by  him,  until  restored  to  the  control  of  his  property,  are 
void.^  It  follows  that  a  conveyance  by  a  lunatic  upon  a  trust 
will  be  good  until  it  is  avoided,  and  a  court  of  equity  would 
not  set  it  aside,  if  it  was  fair  and  reasonable,^  and  if  the 
parties  could  not  be  restored  to  their  original  condition;  nor 
would  the  court  interfere  against  bona  fide  purchasers  with- 
out notice  of  the  lunacy.^ 

§  36.  An  alien  may  take  real  estate  by  devise  or  purchase, 
though  he  cannot  take  by  operation  of  law,  as  by  descent,  or 
as  tenant  by  curtesy.  If  an  alien  takes  land  by  purchase, 
he  may  hold  it  until  office  found ;  and  if  he  conveys  it  in 
trust  or  otherwise,  his  grantee  will  hold  it  until  office  found. 
An  alien  can  therefore  create  a  trust  of  real  estate  only  until 
the  State  interposes.  An  alien  may  exercise  all  rights  of 
ownership  over  personal  property,  consequently  he  can  create 
a  valid  trust  in  it.* 

§  37.  By  the  bankrupt  law  of  England  all  the  property 
which  the  bankrupt  is  entitled  to  up  to  the  date  of  the 
certificate  of  his  discharge  vests  in  his  assignees;^  and  he 
can  create  no  trust  in  it,  except  in  the  surplus  that  may 
remain  after  the  payment  of  all  his  debts. ^  Under  the 
bankrupt  laws  of  the  United  States  and  the  insolvent  laws  of 
the  various  States,  only  the  interests  of  the  bankrupt  exist- 
ing at  the  date  of  the  assignments  vest  in  his  assignees ;  ^  he 
may,  therefore,  create  a  valid  trust  in  property  acquired 
after  the  assignment  and  before  the  certificate. 

1  L'Amoureux  v.  Crosby,  2  Paige,  422;  Pearl  v.  McDowell,  3  J.  J. 
Marsh.  G5S. 

2  Niell  V.  Morley,  9  Ves.  478  ;  Story,  Eq.  Jur.  §  228. 

3  Carr  v.  Ilalliday,  1  Dev.  &  Batt.  344  ;  Price  v.  Berrington,  3  Mac.  & 
G.  486  ;  Greenslade  r.  Dare,  20  Beav.  285. 

*  2  Kent,  pp.  1-36  ;  Lewin  on  Trusts,  p.  25  ;  Hill  on  Trustees,  p.  47. 
■»  12  &  13  Vict.  c.  106,  §§  141,  142. 

*  Lewin  on  Trusts,  p.  26 ;  Hill  on  Trustees,  p.  47. 

'  In  Matter  of  Grant,  2  Story,  312  ;  Mosby  v.  Steele,  7  Ala.  299  ;  Ex 
parte  Newhall,  2  Story,  360. 

26 


CHAP.   II.]  WHO   MAY   BE   TRUSTEE.  [§  38. 


11.     Who  may  he  a  Trustee. 

§  38.  It  is  a  rule  that  admits  of  no  exception,  that  cfpiily 
never  wants  a  trustee,  or,  in  other  words,  that  if  a  trust  is 
once  pro))crly  created,  the  incompetency,  disal)ility,  death, 
or  non-appuintment  of  a  trustee  siiall  not  defeat  it.*  Thus, 
if  property  has  been  bequeathed  in  trust,  and  no  trustee,  or 
a  trustee  disabled  from  tal<in<r,  or  one  who  is  dead,  or  refuses 
to  take,  is  ai){)ointcd,  the  court  will  decree  the  execution  of 
the  trust  by  the  ])ersonal  representatives,  if  it  is  j^ersonal 
property,  and  by  the  heirs  or  devisees,  if  it  is  real  estate.^ 
Property  once  charged  with  a  valid  trust  will  be  followed  in 
equity  into  whosesoever  hands  it  comes,  and  he  will  be 
charged  with  the  execution  of  the  trust,  unless  he  is  a  pur- 
chaser for  value,  and  without  notice.^  The  holder  of  the 
legal  title  and  the  absolute  interest  in  property  may  convert 
himself  into  a  trustee  by  making  a  valid  declaration  of  trust 
upon  good  consideration;*  or  if  he  conveyed  the  j)roperty  by 
some  conveyance  which  was  inoperative  in  law,  equity  would 
hold    him  to  be  a  trustee;^  as  if   a  man   convey  projjcrty 

1  Co.  Litt.  200  b,  113  a,  Butler's  note  (1)  ;  Ptory,  Eq.  Jur.  §§  98,  976; 
McCartee  v.  Orph.  Asy.  Soc,  9  Cow.  4;>7  ;  Crocheron  c.  Jaques,  3  Edw. 
207  ;  Buiuly  v.  Bundy,  28  N.  Y.  410;  Dodkin  v.  Brunt,  L.  R.  G  Eq.  580. 

2  Piatt  V.  Yattier,  9  Pet.  405 ;  Gibbs  v.  Marsh,  2  Met.  243  ;  Withers  v. 
Teadon,  1  Rich.  Eq.  325;  King  v.  Donnelly,  5  Paige,  46;  Dawson  v.  Daw- 
son, Rice,  Eq.  243  ;  Cushncy  v.  Henry,  4  Paige,  345;  De  Barante  v.  Gott, 
6  Barb.  492  ;  IMalin  v.  Malin,  1  Wend.  625;  Mclutire  v.  Zanesville  C.  & 
M.  Co.,  9  Ham.  203;  Kerr  v.  Day,  14  Pa.  St.  114;  Att.  Gen.  v.  Down- 
ing, Amb.  550;  Bennet  v.  Davis,  2  P.  Wins.  316  ;  Sonlcy  v.  Clocknialcers' 
Co.,  1  Bro.  Ch.  81  ;  Treat's  App.,  30  Conn.  43  ;  White  v.  Hampton,  13 
Iowa,  259. 

8  Ibid.;  Shepherd  v.  McEvers,  4  John.  Ch.  136. 

*  See  notes  to  Woollam  v.  Ilearne,  2  Lead.  Cas.  Eq.  404  ;  ^lackreth  r. 
Simmons,  1  Lead.  Cas.  Eq.  235;  Adams  v.  Adams,  21  Wall.  1S6. 

5  McKay  v.  Carrington,  1  McLean,  50  ;  Kerr  v.  Day,  14  Penn.  St.  114  ; 
Crawford  v.  Bertholf ,  Saxt.  Ch.  458 ;  Malin  v.  Malin,  1  Wend.  625 ;  Ty- 
son V.  Passmore,  2  Barr,  122;  Ten  Eick  v.  Simpson,  1  Sand.  Ch.  244; 
Waddington  r.  Banks,  1  Brock.  97  ;  Atcherley  v.  Yemen,  10  Mod.  518; 
Davie  r.  Beardsham,  1  Ch.  Cas.  39  ;  (Jreeii  v.  Smith,  1  Atk.  572  ;  I'ollex- 
fen  V.  Moore,  3  Atk.  272;  Wall  v.  Bright,  1  J.  &  W.  474. 

27 


§  39.]  PARTIES    TO    TRUSTS,   ETC.  [CHAP.   11. 

directly  to  his  wife,  a  transaction  inoperative  in  most  of  the 
States,  equity  would  uphold  the  act,  and  decree  the  husband 
to  be  a  trustee.^ 

§  39.  It  may  be  stated,  in  general  terms,  that  whoever  is 
capable  of  taking  the  legal  title  or  beneficial  interest  in 
property,  may  take  the  same  in  trust  for  others. ^  Whatever 
persons  or  corporations  are  capable  of  having  the  legal  title 
or  beneficial  interest  cast  upon  them  by  gift,  grant,  bequest, 
descent,  or  operation  of  law,  may  take  the  same  subject  to  a 
trust,  and  they  will  become  trustees.  But  it  docs  not  follow 
that  whoever  is  capable  of  taking  in  trust,  is  capable  of  per- 
forming or  executing  it.  The  inquiry,  then,  is  not  so  much 
who  may  take  in  trust,  as  it  is  who  may  execute  and  perform 
a  trust.  Sometimes  the  law  provides  against  the  appoint- 
ment of  non-residents  as  trustees.^  If  a  trust  is  cast  upon  a 
person  incapable  of  taking  and  executing  it,  courts  of  equity 
will  execute  the  trust  by  decree,  or  they  will  appoint  some 
person  capable  of  performing  the  requirements  of  the  trust. 
Mr.  Lewin  says  that  "in  general  terms,  a  person  to  be 
appointed  trustee  should  be  a  person  capable  of  taking  and 
holding  the  legal  estate,  and  possessed  of  natural  capacity 
and  legal  ability  to  execute  the  trust,  and  domiciled  within 
the  jurisdiction  of  the  court. "^  Sir  George  J.  Turner,  L.  J., 
laid  down  the  general  rules  which  govern  courts  in  making 
appointments  of  trustees  as  follows  :  — 

"First,  the  court  will  have  regard  to  the  wishes  of  the 
persons  by  whom  the  trust  has  been  created,  if  expressed  in 
the  instrument  creating  the  trust  or  clearly  to  be  collected 
from  it.  I  think  this  rule  may  be  safely  laid  down,  because 
if  the  author  of  the  trust  has  in  terms  declared  that  a  par- 
ticular person,    or  a  person  filling  a  particular  character, 

1  Huntly  y.  Huntly,  8  Ired.  Eq.  250;  Livingston  v.  Livingston,  2  John. 
Ch.  537 ;  Garner  v.  Garner,  1  Busb.  Eq.  1. 

2  Fonb.  Eq.  139,  n.  ;  Hill  on  Ti-ustees,  4S  ;  Commissioners  r.  Walker, 
6  How.  (Miss.)  146. 

3  Rinker  v.  Bissell,  90  Ind.  375 ;  Meikel  v.  Greene,  94  Ind.  344. 
*  Lew  in  on  Trusts,  27. 

28 


CHAI'.    II.]  KING.  [§  40. 

should  nut  be  trustee  of  the  instrument,  there  cannot,  as  I 
apprehend,  be  the  least  doubt  that  the  court  would  not 
appoint  to  the  ofTice  a  person  whose  appointment  was  so 
prohibited;  and  I  do  not  think  that  upon  a  question  of  this 
description  any  distinction  can  be  drawn  between  express 
declaration  and  demonstrated  intention.  The  analogy  of  the 
course  which  the  court  pursues  in  the  appointment  of  guar- 
dians affords,  I  think,  some  support  to  this  rule.  The  court 
in  those  cases  attends  to  the  wishes  of  the  jjurents,  however 
infunnally  they  may  be  expressed. 

•■'Another  rule  which  may,  1  think,  safely  be  laid  down, 
is  this,  — that  the  court  will  not  appoint  a  person  to  be 
trustee  with  a  view  to  the  interest  of  some  of  the  persons 
interested  under  the  trust,  in  opposition  either  to  the  wishes 
of  the  testator,  or  to  the  interests  of  other  of  the  cestuis  que 
trust.  I  think  so  for  this  reason,  that  it  is  of  the  essence  of 
the  duty  of  every  trustee  to  hold  an  even  hand  between  the 
parties  interested  in  the  trust.  Every  trustee  is  in  duty 
bound  to  look  after  the  interests  of  all,  and  not  of  any 
particular  member  or  class  of  members  of  his  cestuis  que 
trust. 

"A  third  rule  which  may  be  safely  laid  down  is  that  the 
court,  in  appointing  a  trustee,  will  have  regard  to  the 
question  whether  his  aj^pointmcnt  will  promote  or  impede 
the  execution  of  the  trust;  for  the  very  purpose  of  the 
appointment  is  that  the  trust  may  be  better  carried  into 
execution."  ^ 

§  40.  The  sovereign  may  sustain  the  character  of  a 
trustee.  He  has  a  legal  capacity  to  take  and  hold  the 
estate,  and  to  execute  the  trust ;2  but  there  is  a  difliculty  in 
every  country  in  executing  the  judgments  and  decrees  of  a 
court  against  th^  sovereign  power  of  the  country.  In  Eng- 
land, it  is  said  that  the  Court  of  Chancery  has  no  jui-isdic- 
tion  over  the  king's  conscience,  for  the  Lord  Chancellor 
only  exercises  the  equitable  authority  of  the  king  himself  in 

1  In  re  Tempest,  L.  11.  1  Ch.  487. 
^  Lewin  oii  Trusts,  27. 

29 


§  41.]  PARTIES    TO   TRUSTS,   ETC.  [CIIAP.   II. 

judging  between  his  subjects.  But  the  greater  difficulty  is 
in  enforcing  the  decrees  of  a  court  against  the  sovereign 
power ;  for  "  the  arms  of  equity  are  very  short  against  the 
prerogative."^  The  subject  may  have  a  clear  right,  but  no 
remedy  either  at  law  or  equity  against  the  Crown ;  in  such 
case  liis  only  resource  is  an  appeal  to  the  king  by  a  petition 
of  right,  and  it  cannot  be  supposed  that  he  would  be  refused. 
The  question  is  now  of  less  importance;  for  by  statute,  if 
trust  property  vests  in  the  Crown  by  escheat,  the  king  is 
enabled  to  grant  it  to  trustees  for  the  purpose  of  executing 
the  trust. 2  And  by  an  amendment  it  is  further  provided 
that  property  held  in  trust  shall  not  escheat  or  be  forfeited 
to  the  Crown  by  the  failure  or  forfeiture  of  the  trustee  ;2  and 
it  is  still  further  provided,  that  in  such  cases  trust  property 
shall  be  under  the  control  of  the  Court  of  Chancery  for  the 
use  of  the  parties  beneficially  interested,  and  that  new 
trustees  shall  be  appointed.^  Under  these  statutes  it  is  said 
that  an  equity  will  be  enforced  against  the  Crown. ^  The 
only  cases  where  the  question  is  still  open,  whether  a  trust 
can  be  enforced  against  the  Crown,  is  where  the  person  of 
the  sovereign  takes  by  descent  as  heir,  or  by  representation, 
or  where  he  may  have  held  as  trustee  previously  to  his 
acquiring  the  crown,  or  where  a  grant  or  bequest  is  made  to 
him  as  a  trustee.^ 

§  41.  The  United  States,  and  each  one  of  the  separate 
States,  may  sustain  the  character  of  trustee.  They  have 
legal  capacities  to  take  and    execute  trusts    for   every  pur- 

1  Pawlett  V.  Att.  Gen.,  Hard.  467  ;  Burgess  v.  Wbeate,  1  Eden,  255; 
Kildare  v.  Eustace,  1  Yern.  439  ;  Wike's  Case,  Lane,  54  ;  Penn.  v.  Lord 
Baltimore,  1  Yes.  453;  Pteeve  i'.  Att.  Gen.,  2  Atk.  224;  Ilovenden  v.  Lord 
Anuesley,  2  Scli.  &  L.  617  ;  Hodge  v.  Att.  Gen.,  3  Yo.  &  Col.  342  ;  Briggs 
V.  Liglit-boats,  11  Allen  (Mass.),  157,  ■where  all  the  authorities  are  com- 
mented on. 

2  39  &  40  Geo.  IH.  c.  88. 
8  4  &  5  Wm.  lY.  23. 

*  13  &  14  Yict.  c.  60,  §§  15,  46,  47. 
6  Hughes  V.  Wells,  9  Hare,  749 ;  13  Eng.  L.  &  Eq.  389. 
6  Hill  ou  Trustees,  50. 
'  30 


CIIAI'.    II.]  CORPORATIONS.  [§  41. 

posc.^(a)  But  a  court  caunot  execute  its  jud;Tmonts  and 
decrees  against  a  sovereign  State  with  any  more  eiTect  than 
the  courts  of  Enirland  can  enforce  their  orders  against  the 
king.  The  arms  of  equity  in  America  arc  as  sliort  against 
the  sovereign  power  as  they  are  in  England  against  the  pre- 
rogative. Mr,  Justice  Gray  has  clearly  shown  that  a  State 
cannot  he  sued  in  law  or  equity  against  its  consent,  or 
unless  there  is  some  general  or  special  statute  authorizing 
the  suit.2  A  subject  may  have  a  clear  right,  but  no  remedy; 
in  such  case  he  must  petition  the  legislative  power,  and 
there  is  no  reason  to  suppose  that  his  right  would  be  refused. 
If  a  State  accepts  a  trust  by  grant  or  bequest,  it  must  act 
through  its  legislative  powers  in  administering  the  trust,  or 
in  creating  and  appointing  agents  or  officers  to  perform  the 
duties  which  it  assumes ;  as  the  United  States  acted  in  rela- 
tion to  the  bequest  of  James  Smithson  in  trust  for  the  estab- 
lishment of  the  Smithsonian  Institution  for  the  increase  and 
diffusion  of  knowledge  among  men.^  A  limitation  over  of 
a  charitable  devise  to  the  States  of  Maryland  and  Louisiana 
in  case  of  forfeiture  by  the  first  takers  was  held  not  to  vitiate 
the  bequest.* 

^  See  Mitford  v.  Reynolds,  1  Phill.  185  ;  Xightingale  v.  Gouldbourn,  2 
Phill.  504  ;  5  Hare,  iSi.  It  was  denied,  however,  that  the  United  States 
could  take  in  trust  in  Levy  v.  Levy,  33  N.  Y.  97  ;  Shoemaker  v.  Comm'rs, 
36  Ind.  176. 

"  Bii2:gs  i\  Light-boats,  11  Allen,  157. 

«  U.  S.  Stat.  1836,  c.  252,  Vol.  V.  p.  64  (L.  &  Bro.  ed.)  ;  also,  Stat. 
184G,  c.  178,  Vol.  IX.  p.  102. 

*  WcDonogh's  Ex'rs  v.  Murdoch,  15  How.  367. 

(a)  A  public  corporation  maybe  such  a.s  the  erection  of  wharves  or 
a  trustee.  A  State  is  a  trustee  of  the  other  aids  to  connnerce.  Shively  v. 
rights  of  its  people  in  navigable  Bowlby,  152  U.  S.  1. 
waters.  Allen  v.  Allen,  19  R.  I.  Public  officers,  such  as  State 
114.  Tide  lands  in  a  Territory  are  commissioners,  authorized  to  super- 
held  in  trust  by  the  general  govern-  intend  the  building  of  a  State- 
ment for  the  future  State,  but  the  house,  are  not  properly  tru.stees.  but 
United  States  may  grant  them  to  State  agents.  In  re  New  State- 
individuals  for  appropriate  purposes,  house  (11.  I.),  37  Atl.    2. 

31 


§  43.]  PARTIES   TO   TRUSTS,    ETC.  [CIIAP.    II, 

'."  §  42.  ]t  was  formci'ly  laid  down  that  corporations  could 
not  be  seized  of  lands  to  the  use  of  anotlier,  and  could  not 
be  trustees.^  The  reason  assigned  for  this  rule  was  that  no 
trust  or  confidence  could  be  reposed  in  them ;  that  they 
could  not  be  compelled  to  execute  a  use  or  perform  a  trust, 
for  courts  of  equity,  in  decreeing  the  execution  of  a  trust, 
lay  hold  upon  the  conscience  ;2  and  it  is  impossible  to  attach 
any  demand  upon  the  conscience  of  a  body  so  artificially 
created  that  it  cannot  in  the  nature  of  things  have  a  con- 
science. Again,  it  was  said  that  they  could  not  be  impris- 
oned if  they  refuse  to  obey  the  decrees  of  the  court.  But  the 
technical  rules  upon  which  it  was  held  that  corporations  could 
not  be  trustees  have  ceased  to  operate ;  and  at  the  present 
day  corporations  of  every  description  may  take  and  hold 
estates,  as  trustees,  for  purposes  not  foreign  to  tiie  purposes 
of  their  own  existence ;  and  they  may  be  compelled  by  courts 
of  equity  to  carry  the  trusts  into  execution,^  If  they  misapply 
the  trust  fund,  or  refuse  to  obey  the  decrees  of  the  court,  the 
proper  remedy  is  by  distringas,  sequestration,  or  injunction, 
or  by  removal  and  appointment  of  new  trustees.* 

§  43,  It  must  be  understood,  however,  that  corporations  are 
the  creatures  of  the  law,  and  that  as  a  general  rule  they  can- 
not exercise  powers  not  given  to  them  by  their  charters  or 
acts  of  incorporation.^     For  this  reason  they  cannot  act  as 

1  Bacon  on  Uses,  57;  1  Cruise,  Dig.  p.  340. 

2  Sugd.  V.  &  P.  p.  417. 

3  Att.  Gen.  v.  St.  John's  Hosp.,  2  De  G.,  J.  &  Sm.  621  ;  Att.  Gen.  v. 
Landerfield,  9  Mod.  280 ;  Dummer  v.  Chippenham,  14  Ves.  252  ;  Green 
V.  Rutherforth,  1  Ves.  468;  Att.  Gen.  v.  Whorwood,  1  Ves.  530  ;  Att. 
Gen.  V.  Stafford,  Barn.  33;  Att.  Gen.  v.  Found.  Hosp.  2  Ves.  Jr.  40;  Att. 
Geu.  V.  Clarendon,  17  Ves.  499  ;  Att.  Gen.  v.  Caius  College,  2  Keen,  105 ; 
Att.  Gen.  v.  Ironmongers'  Co.,  2  Beav.  313;  Jackson  y.  Hart  well,  8. Johns. 
422;  Trustees  Phillips  Academy  v.  King,  12  Mass.  546  ;  Att.  Gen.  v. 
Utica  Ins.  Co.,  2  Johns.  Ch.  3^1;  Vidal  r.  Girard,  2  How.  187  ;  Millers. 
Lerch,  1  Wall.  Jr.  210  ;  Columbia  Bridge  Co.  v.  Kline,  Bright,  N.  P.  320; 
Greenville  Acad.,  7  Rich.  Eq.  476  ;  McDonogh  v.  Murdoch,  15  How.  367; 
Green  v.  Dennis,  6  Cow.  304  ;  Dublin  Case,  38  N.  H.  577. 

4  flavor  of  Coventry  v.  Att  Gen.,  7  Bro.  P.  C.  235 ;  3  Mad.  Ch,  77,  209. 

5  In  Matter  of  Howe,  1  Paige,  214. 

32 


CHAP.    II.]  CORPORATIONS.  [§  43. 

trustees  in  a  matter  in  wliicli  they  have  no  interest,  or  in  a 
matter  that  is  inconsistent  with,  or  repugnant  to,  the  purposes 
for  wiiich  they  were  created.^  Nor  can  they  act  as  trustees  if 
they  are  forbidden  to  take  and  hold  lands,  as  by  the  statutes 
of  mortmain,  nor  if  they  arc  not  empowered  to  take  the  prop- 
erty. But  if  the  trusts  are  within  the  general  scojje  of  the 
purposes  of  the  institution  of  the  corporation,  or  if  they  are 
collateral  to  its  general  purposes,  but  germane  to  them,  as  if 
the  trusts  relate  to  matters  which  will  promote  and  aid  the 
general  jiurposes  of  the  corporation,  it  may  take  and  hold, 
and  be  compelled  to  execute  them,^  if  it  accepts  them.  Thus 
towns,  cities,  and  parishes  may  take  and  hold  proi)erty  in 
trust  for  the  establishment  of  colleges,^  for  the  purpose  of 
educating  the  poor,*  for  the  relief  of  the  poor,  though  not 
pau[)ers,  by  furnishing  them  fuel  at  a  low  price,^  and  for  the 
sui)port  of  schools,®  or  for  any  educational  or  charitable  pur- 
poses within  the  scope  of  its  charter^  So  also  overseers  of 
the  poor,  supervisors  of  a  county,^  commissioners  of  roads  in 
South  Carolina,^  trustees  of  the  poor  in  Mississippi,  and  also 
trustees  of  the  school  fund,^''  are  corporations  sub  modo  ;  and 
they  may  take  and  execute  trusts  within  the  scope  of  their 
official  duties  (a). 

^  In  flatter  of  Howe,  1  Paige,  214;  Jackson  v.  Ilartwell,  8  Johns.  422. 

2  Story,  J.,  Vidal  v.  Girard,  2  How.  188-190  ;  McDonogh  v.  Murdoch, 
15  How.  3G7 ;  First  Cong.  Soc.  of  Southington  i'.  Atwater,  23  Conn.  34  ; 
Wetmore  i'.  Parker,  7  Laiis.  121. 

*  Vidal  V.  Girard,  ut  supra.  But  see  Perin  v.  McMicken,  15  La.  An. 
154. 

*  McDonogh  v.  ^lurdoch,  ut  supra. 

^  Webb  I'.  Xeal,  5  Allen,  575 ;  Mclntire  Poor  School  v.  Zanesville 
Canal  Co.,  9  Ohio,  217. 

6  First  Parish  in  Sutton  v.  Cole,  3  Pick.  232. 
'   Rariium  r.  Baltimore.  02  Md.  275. 

*  North  IIerap.stead  i;.  Hempstead,  2  Wend.  109 ;  Jansen  v.  Ostrander, 
1  Cow.  670. 

»  Com.  Roads  v.  McPher.son,  1  Spear,  218. 

10  Governor  v.  Gridley,  Walk.  328  ;  Carmichael  v.  Trustees,  &c.,  3  How. 
(Miss.)  84. 

(a)  A  municipal  corporation  may    sistent  with  its  organization.     See 
be  a  tnistet",  at  loast  of  charities  con-    Sargent  i'.  Cornish,  54   X.   H.  18; 
VOL.   I.  —  3  33 


§44] 


PARTIES   TO   TRUSTS,   ETC. 


[chap.    II. 


§  44.  A  bank  may  receive  a  deed,  and  hold  land  in  trust 
to  receive  a  debt  due  to  it.^  (a)  One  corporation  may  take 
and  bold  in  trust  for  another,  or  for  a  stranger,^  or  for  an  indi- 
vidual ;  as  where  one  gave  a  legacy  to  a  church  corporation 
in  trust  to  pay  the  income  to  his  housekeeper  for  life,  and 
after  her  death  to  apply  it  to  church  purposes,  it  was  held 
tiiat  the  corporation  might  well  execute  the  trust,  on  the 
principle  that  when  ])roperty  is  given  to  a  corporation  partly 
for  its  own  use  and  partly  for  the  use  of  another,  the  power 
of  the  corporation  to  take  and  hold  for  its  own  use  carries 
Avith  it,  as  a  necessary  incident,  the  power  to  execute  that 
part  of  the  trust  which  relates  to  others.^  The  supervisors 
of  a  county  cannot  take  in  trust  for  a  town  or  village  or 

1  Morris  v.  Way,  16  Ohio,  478. 

^  Phillips  Academy  v.  King,  12  Mass.  546. 

8  In  Matter  of  Howe,  1  Paige,  214. 


Dailey  v.  New  Haven,  60  Conn.  314; 
14  L.  R.  Ann.  09,  and  note;  Ilig- 
ginson  v.  Turner,  171  Mass.  586 ; 
Ayer  v.  Bangor,  85  Maine,  511; 
Ilandley  v.  Palmer,  91  F.  R.  948. 
So  swamp  lands  may  be  received  by 
a  county  in  trust  for  the  public 
schools,  and  in  such  case  they  can- 
not be  sold  on  execution  as  the 
property  of  the  county.  Stone  v. 
Perkins,  85  F.  R.  616. 

(o)  A  bank  does  not  become  a 
tnistee  by  issuing  a  draft  upon 
another  bank  at  the  request  of  a 
depositor  who  pays  therefor  by  his 
own  check.  Jewett  v.  Yardley,  81 
F.  R.  020.  But  when  one  bank 
sends  a  note  to  another  bank  for 
collection,  and  it  is  collected  by  the 
latter,  or  when  an  indorser  pays  a 
note  at  a  bank,  which  retains  pos- 
session of  the  note,  but  does  not 
apply  the  payment  thereto,  the  funds 
so  paid  have,  in  some  cases,  been 
regarded  as  held  in  trust,  though 
mingled  with  other  money,  and  as 

34 


recoverable  in  full  if  the  collecting 
bank  becomes  insolvent.  See  j\Ias- 
sey  V.  Fisher,  62  F.  R.  958 ;  People 
V.  Rochester,  96  N.  Y.  32 ;  Cavin  v. 
Gleason,  105  N.  Y.  256,  263  ;  Irwin 
V.  Reeves  Pulley  Co.,  20  Ind.  App. 
101 ;  German  Nat.  Bank  v.  Burns, 
12  Col.  539 ;  Manufacturers'  Nat. 
Bank  v.  Swift,  70  Md.  515;  Capital 
Nat.  Bank  v.  Coldwater  Nat.  Bank, 
49  Neb.  786 ;  State  Nat.  Bank  v. 
Thomas  ^lanuf .  Co.  (Texas),  42  S. W. 
1016  ;  Mechem  on  Agency,  §  514  ; 
1  Ames  on  Trusts  (2d  ed.),  18,  43; 
infra,  §  122,  n. 

The  relation  of  safe-deposit  com- 
panies to  those  who  hire  boxes  from 
them,  and  have  keys  thereto,  is  that 
of  bailment,  and  not  one  of  trust  or 
tenancy.  Roberts  v.  Stuyvesant, 
S.  D.  Co.,  123  N.  Y.  57.  Property 
so  deposited  cannot  be  reached  by 
trustee  process,  but  may,  it  seems, 
be  directly  attached  or  reached 
through  a  court  of  equity.  See 
9  Harv.  L.  Rev.  131,  135. 


CHAP.    II.]  COUPORATIONS.  [§  45. 

for  individuals,  but  only  for  the  body  which  they  represent.^ 
"Whether  a  particular  corporation  can  hold  as  trustee  for  any 
specific  purpose  must  generally  be  determined  by  the  con- 
struction of  its  charter  and  of  the  laws  of  the  State  in  whicii 
it  acts.2 

§  45.  If  a  corporation  takes  land  by  grant  or  bequest  in 
trust  or  otherwise,  which  by  its  charter  it  cannot  hold,  its 
title  is  good  as  against  third  persons  and  strangers  ;  the  State 
only  can  interfere.^  A  corporation  cannot  be  compelled  to 
execute  a  trust  in  property,  the  legal  title  to  which  it  has 
no  power  to  take  and  hold  ;  *  l)ut  the  trust,  if  otherwise  valid, 
is  not  for  that  reason  void,  and  the  court  will  appoint  a  com- 
petent trustee,  and  direct  a  conveyance  of  the  property  to 
him ;  as  where  a  testator  gave  land  to  a  corporation  that  could 
not  take  by  reason  of  the  statute  of  mortmain,  in  trust  to 
sell  and  apply  the  proceeds  to  persons  competent  to  take,  it 
was  held  that  though  the  devise  was  void  at  law,  yet  in  equity 
it  was  a  valid  trust,  and  that  the  heir  was  a  trustee  to  the 
uses  declared  in  the  will.^ 

^  Jackson  v.  Ilartwell,  S  Johns.  422. 

•^  Dartmouth  Coll.  i'.  Woodward,  4  Wheat.  636;  Head  v.  Providence 
Ins.  Co.,  2  Cranch,  127  ;  State  v.  Stebbins,  1  Stew.  299  ;  Beaty  t'.  Knowler, 
4  Pet.  152  ;  Beaty  v.  Marine  Ins.  Co.,  2  Johns.  109  ;  People  r.  Utica  Ins. 
Co.,  15  Johns.  358 ;  New  York  Fire  Ins.  Co.  v.  Ely,  2  Cow.  67S;  State  r. 
IMayor  of  Mobile,  5  Porter,  279. 

*  liunyan  v.  Coster's  Lessee,  14  Pet.  122 ;  Miller  v.  Lerch,  1  Wall.  Jr. 
210;  Leazure  v.  Hillegas,  7  S.  &  R.  321;  Perin  v.  Cary,  24  How.  465; 
Chapin  v.  School  Dist.,  35  N.  H.  445;  Troy  v.  Haskell,  33  N.  H.  533; 
Philadelphia  v.  Girard,  45  Penn.  St.  9;  Humbert  v.  Trinity  Church,  24 
Wend.  5S7;  Ilarpending  r.  Dutch  Church,  16  Pet.  492;  Bogardus  r.  Trin- 
ity Church,  4  Sand.  Cli.  758;  Angell  v.  Ames,  Corp.  §§  151-155. 

*  Sonley  v.  Clockmaker's  Co.,  1  Bro.  Ch.  81 ;  Vidal  v.  Girard,  2  How. 
188. 

*  Ibid. ;  Winslow  r.  Cummings,  3  Cush.  358.  This  is  denied  to  be  the 
law  in  the  courts  of  New  York,  in  relation  to  charitable  bequests.  See 
Ayres  v.  Methodist  Church,  3  Sand.  351 ;  Andrew  t'.  Bible  Soc.  4  Sand. 
150  ;  Levy  v.  Levy,  40  Barb.  5'^5 ;  33  X.  Y.  07.  These  oases  are  governed  by 
a  statute,  as  is  said,  and  would  not  probably  be  followed  outside  of  that 
State  ;  nor  are  they  fully  concurred  in  by  their  own  courts,  as  there  was  a 
strong  dissent  in  the  Court  of  Appeals,  the  couj't  of  last  resort. 

35 


§  47.]  PARTIES   TO   TRUSTS,    ETC.  [CHAP.    II. 

§  46.  Grants  or  gifts  to  an  unincorporated  association  in 
trust  for  a  charitable  purpose  are  sustained  in  equity,  as  a 
lei^acy  to  the  Seamen's  Aid  Society,  to  go  to  their  treasurer 
for  the  time  being  for  the  purposes  of  such  society  ;  ^  a  be- 
quest over  to  several  unincorporated  societies,  some  of  them 
not  in  the  State,  was  held  good,^  and  if  the  members  are  too 
numerous  to  administer  the  trust,  the  court  will  appoint  a 
trustee.^  So  a  bequest  to  "  The  Marine  Bible  Society,"  for 
certain  purposes,  was  held  to  establish  a  charitable  trust, 
although  the  society  was  a  voluntary  association,  and  had 
been  disbanded,  and  the  court  appointed  a  trustee  to  carry 
the  trust  into  effect.*  In  Pennsylvania,  substantially  the 
same  doctrine  has  been  held.^  A  different  doctrine  was  held 
in  the  Supreme  Court  of  the  United  States;  ^  but  the  case 
was  decided  upon  the  law  of  Virginia,  and  may  be  consid- 
ered as  settling  a  local  rather  than  a  general  question.'^ 
The  later  cases  in  the  same  court  hold  the  general  rule  to  be 
otherwise.^ 

§  47.  A  trust  to  a  board  of  officers  in  their  official  capacity 
for  purposes  within  the  scope  of  their  official  duties  may  be 
executed  by  them.^  Where  a  bequest  was  to  the  chancellor 
of  the  State  of  New  York,  the  mayor  and  recorder  of  the 
city  of  New  York,  and  several  other  persons  by  their  official 
description  only,  and  their  successors  in  office,  to  build  and 

^  Tucker  v.  Seamen's  Aid  Soc,  7  Met.  188;  First  Cong.  Soc.  of  South- 
ington  V.  Atwater,  23  Conn.  56. 

2  Burbank  v.  Whitney,  24  Pick.  146;  Washburn  v.  Sewall,  9  Met.  280. 
But  see  Methodist  Church  v.  Remmington,  1  Watts,  218. 

3  Burbank  v.  Whitney,  24  Pick.  140  ;  Wasliburn  v.  Sewall,  9  Met.  280. 
But  see  ^Methodist  Church  v.  Remmington,  1  Watts,  218. 

*  Winslow  V.  Cummings,  3  Cusli.  358. 

5  Pickering  v.  Shotwell,  10  Barr,  27;  and  see  the  able  opinion  of  Bald- 
win, J  ,  in  Jlagill  V.  Brown,  Bright,  X.  P.  350.  See  also  Methodist 
Chur''li  V.   Remmington,  1  Watts,  218. 

®  Baptist  Asso.  v.  Ilart,  4  Wheat.  1;  Inglis  v.  Sailors'  Snug  Harbor, 
3  Pet.  in. 

'  Baldwin,  J.,  in  I^.Iagill  v.  Brown,  Bright,  X.  P.  354. 

8  Yidal  V.  Girard,  2  How.  187.     See  chapter  on  Charitable  Trusts,joos^ 

9  A  nte,  §  30. 

06 


CHAP.    II.]  UNINCORPORATED   SOCIETIES.  [^  47. 

maintain  a  hospital,  and  if  this  could  not  be  done  legally, 
they  were  to  apply  for  an  act  of  incorporation,  and  at  all 
events  the  estate  should  be  held  by  an  heir  charged  with  the 
trusts,  it  was  held  that  the  designation  of  the  trustees  by 
their  olliciul  character  was  equivalent  to  naming  them  by  their 
proper  names ;  that  the  trust  was  ncjt  to  be  executed  by  them 
in  their  oflicial  character,  but  in  their  private  and  individual 
capacity  ;  and  that  if  the  trust  had  been  to  the  oflicers  named 
and  their  successors  to  execute,  and  no  other  provisions  had 
been  made,  it  would  have  fallen  within  the  case  of  Baptist 
Association  v.  Hart's  Executors,  and  would  have  been  void. 
It  was  further  held  that  it  was  a  good  executory  devise  to  a 
corporation  to  be  created  in  futuro,  and  in  the  mean  time 
that  the  estates  in  the  hands  of  the  heir  would  be  held  charged 
with  the  trusts.^  A  bequest  to  the  chancellor  of  the  Ex- 
chequer for  the  time  being  for  the  benefit  of  Great  Britain 
was  held  good;^  and  the  Governor-General  of  India  may  take 
in  trust  for  the  benefit  of  the  city  of  Decca.^  Where  a  British 
subject  bequeathed  funds  to  the  President  and  Vice-President 
of  the  United  States  and  the  Governor  of  Pennsylvania  for 
the  time  being,  to  establish  a  college  in  the  State  of  Penn- 
sylvania, and  directed  tiiat  moral  philosophy  should  be  taught, 
and  that  a  professor  should  inculcate  the  rights  of  the  black 
peoj)le  of  every  clime,  until  they  were  restored  to  an  equality 
of  riglits  throughout  the  Union,  the  Court  of  Chancery 
directed  an  inquiry  to  be  made  whether  the  President,  Vice- 
President,  and  Governor  would  accept  the  trust,  and  it 
appearing  that  they  declined  to  act,  it  was  held  that  the  trust 
failed  ;  and  as  it  could  not  be  carried  into  effect,  c//  jyres,  in 
a  foreign  country,  that  the  gift  fell  into  the  residue.*  A  bank 
comptroller  is  a  trustee  of  the  various  securities  held  by  him 
for  the  several  banks ;  but  the  State  itself  is  not  liable  as  a 
trustee  for  his  acts.^ 

^  Inglis  V.  Trustees  of  the  Sailors'  Snug  Harbor,  3  Pet.  99. 

2  Nightingale  v.  Goulbourn,  2  Phill.  59i  ;  5  Hare,  484. 

8  Mitford  r.  R.-ynolds.  1  Phill.  185. 

♦  New  V.  lionaker.  L.  R.  1  Eq.  655. 

B  State  V.  Bush,  20  Wis.  212. 

37 


§  48.]  PAETIES    TO    TllUSTS,    ETC.  [CHAP.    II. 

§  48.  Married  women  may  become  trustees  by  deed,  gift, 
bequest,  appointment,  or  by  operation  of  law/  If  an  estate 
comes  to  a  married  woman  in  any  way,  charged  with  a  trust,  her 
coverture  cannot  be  pleaded  in  bar  of  the  trust ;  ^  and  a  court 
of  equity  will  enforce  its  execution ;  as  when  the  legal  title 
to  land  in  trust  was  cast  by  descent  upon  a  married  woman, 
and  the  law  required  that  a  deed  executed  by  her  should  be 
acknowledged,  as  executed  voluntarily,  and  she  refused  so  to 
acknowledge  it,  the  court  compelled  her  by  decree.^  But  spe- 
cific performance  will  not  be  enforced  against  a  feme  covert 
trustee  for  sale  upon  her  contract  as  trustee  to  convey.* 
There  is  no  less  judgment  and  discretion  in  a  woman  after 
marriage  than  before.  Sir  John  Trevor  thought  she  rather 
improved  by  her  husband's  teaching.^  The  reasons  for  her 
disabilities  are  founded  upon  her  own  interests,  or  her  hus- 
band's, or  both ;  *^  or  rather  upon  the  broader  policy  of  the 
law  which,  for  the  purpose  of  domestic  peace  and  happiness, 
merges  the  proprietary  interests  of  the  wife  during  coverture 
in  her  husband,  and  will  not  permit  her  to  hold  interests 
separate  from,  and  independent  of,  and  possil)ly  antagonistic 
to  him.  The  policy  of  the  law  has,  however,  been  very  much 
modified  by  legislation  in  later  years.  But  where  such  inter- 
ests are  not  concerned,  she  possesses  the  same  legal  capacity 
as  if  she  were  sui  juris.  Thus,  she  may  execute  any  kind  of 
power,  whether  simply  collateral,  appendant,  or  in  gross  ;  and  it 
is  immaterial  whether  it  is  given  to  her  while  sole  or  married.'^ 

1  Lake  v.  De  Lambert,  4  Ves.  595;  Compton  v,  Collinson,  2  Bro.  Ch. 
377;  Hearle  v.  Greenbank,  1  Ves.  305;  Bell  v.  Hyde,  Pr.  Ch.  350;  Moore 
V.  Hussey,  Hob.  95  ;  Needles  v.  Bish.  of  Winchester,  Hob.  225 ;  Clarke  v. 
Saxon,  1  Hill,  Ch.  69  ;  Bradish  v.  Gibbs,  3  Johns.  Ch.  523;  Livingston  v. 
Livingston,  2  id.  541;  Dundas  v.  Biddle,  2  Barr,  160  ;  Claussen  v.  La  Franz, 
1  Clarke  (La.),  226  ;   Harden  v.  Darwin  &  Pulley,  6G  Ala.  55. 

2  Clarke  v.  Saxon,  1  Hill,  Ch.  69  ;  Berry  v.  Norris,  1  Duv.  302. 
8  Dundas  v.  Biddle,  2  Barr,  160. 

*  Berry  v.  Norris,  1  Duv.  302 ;  Avery  v.  Griffin,  L.  R.  6  Eq.  606. 
6  Bell  V.  Hyde,  Pr.  Ch.  350. 

*  Compton  V.  Collinson,  2  Bro.  Ch.  377. 

'  Co.  Litt.  112  a,  187  b;  JiOrd  Antrim  v.  Buckingham,  2  Freeman, 
168;  Blithe's  Case,  id.  91;  Godolphin  v.  Godolphin,  1  Ves.  23;  Sugden  on 

38 


CHAP.    II.]  MARRIED   WOMEN.  [§  50. 

§  49.  Ill  equity,  the  absolute  interest  in  the  trust  fund  is 
vested  in  the  cestui  que  truat,  the  trustee  is  a  mere  instru- 
ment, and  any  power  or  autlioi-ity  in  the  trustee  must  have 
the  character  of  a  j)()\ver  simply  collateral  ;^  therefore  thei'c  is 
notliinir,  as  resj)ects  lej^al  capacity,  to  j)revx'nt  a  married  woman 
from  administering  a  discretionary  ti'ust.-  But  she  cannot 
create  a  trust  in  her  absolute  property  except  by  joining  licr 
husband  in  conveying  it,  or  in  executing  a  declaration  of  trust.'' 

§  oO.  At  the  same  time  a  husband  must  always  have  a  large 
influence  over  a /erne  covert  trustee;  indeed,  as  he  would  be 
answerable  for  her  acts,  and  liable  for  her  breaches  of  trust, 
he  must,  for  his  own  protection,  look  to  the  manner  in  which 
she  administers  the  fund ;  and  she  must  join  her  husband  in 
suits  in  relation  to  the  trust  property.*  Again,  if  land  is 
conveyed  to  a  married  woman  upon  a  declared  trust  without 
powers  of  sale,  and  it  becomes  necessary  to  sell  and  convey 
the  land,  is  the  husband  to  join  or  not  in  the  conveyance  ;  and 
to  whom  is  the  })urchase-money  to  be  })aid,  and  upon  whose 
receipt?^  Mr.  Lewin  thinks  that  the  joint  receijjt  of  the  hus- 
band and  wife  should  be  taken  ;  but  that  the  safest  way  would 
be  to  })ay  the  money  into  some  bank  ui)on  their  joint  receipt, 
to  remain  until  wanted  for  the  purposes  of  the  trust,  and  that 
if  the  husband  took  it  out  for  any  other  purpose,  he  would  be 
liable  as  for  a  breach  of  trust.^  Another  inconvenience  arises 
in  probate  and  other  trusts,  Avhere  the  trustee  may  be  required 
to  give  bonds  for  the  faithful  administration  of  the  trust.  A 
court  of  equity  may  require  the  trustee  to  give  security  for 
the  property,  even  though  the  trust    arises  by  operation   of 

Powers,  144-155;  4  Kent,  324;  Thompson   i'.    Murray,  2  Hill,  Ch.  214; 
Bradish  v.  Gibbs,  3  Johns.  Ch.  .523. 

1  Smith  ?•.  Smith.  21  Beav.  385  ;  Drummond  r.  Tracy,  1  Johns.  608 ; 
Kin,o:hani  v.  Lee,  15  Sim.  401  ;  People  v.  Webster.  10  Wend.  5.54. 

2  Ibid.  «  Graham  v.  Long,  05  Penn.  St.  383. 
4  Still  V.  Ruby,  35  Penn.  St.  373. 

6  See  Daniel  v.  Uhley,  "NVm.  Jones,  137;  Co.  Litt.  112  a,  Hargrave's 
note  (6);  1  Fonb.  Eq.  92;  McXeille  v.  Acton,  2  Eq.  R.  25. 

^  Lewin  on  Trusts,  24,  25;  Drummond  v.  Tracy,  1  Johns.  611;  4  Cruise, 
Dig.  143;  Co.  Litt.  112  a,  Hargrave'a  note  (6). 

39 


§  51.]  PARTIES   TO   TRUSTS,    ETC.  [CIIAP.    II. 

law.^  A  married  woman  can  enter  into  contracts  only  in 
relation  to  her  sole  and  separate  estate ;  and  how  far  she  can 
bind  herself,  or  her  estate,  by  a  bond  to  execute  a  trust  in 
property,  the  beneficial  interests  in  which  belong  to  another, 
would  always  be  a  perplexing  question,  although  the  sureties 
in  such  a  bond  might  be  liable. 

§  51.  Subject  to  these  inconveniences,  a  married  woman 
can  always  be  a  trustee ;  and  she  may  even  be  a  trustee  for 
her  husband j'-^  (a)  as  well  as  her  husband  for  her,^  and  courts 
will  find  means  to  enforce  the  trusts  ;  but  they  will  not  appoint 
married  women  to  such  offices,  nor  will  they  appoint  them  to 
be  guardians  of  minors  ;  *  a  woman,  on  the  contrary,  will  be 
removed  from  the  office  if  she  is  appointed  while  sole  and 
afterwards  marries.^  For  the  same  reason  it  is  undesirable 
to  appoint  a  feme  sole  trustee;  for  should  she  marry,  her  hus- 
band, being  liable  for  her  breaches  of  trust,  ought  to  have 
control  of  her  acts,  and  the  character  of  the  trust  is  changed. 
On  these  grounds  the  courts  at  one  time  refused  to  appoint 
a, feme  sole  trustee;^  but  it  is  a  matter  of  sound  discretion 
in  the  court,  and  in  a  more  recent  case  a  feme  sole  was 
appointed.^ 

1  Clarke  v.  Saxon,  1  Hill,  Ch.  69. 

2  Livingston  v.  Livingston,  2  Johns.  Ch.  541. 

8  Benuet  v.  Davis,  2  P.  Wins.  316;  Shirley  v.  Shirley,  9  Paige,  36.3; 
Jamison  v.  Brady,  6  S.  &  R.  467;  Boykin  v.  Ciples,  2  Hill,  Ch.  200;  Pic- 
quet  V.  Swan,  4  Mason,  455 ;  Griffith  v.  Griffith,  5  B.  Monr.  113. 

*  Re  Kaye,  L.  R.  1  Ch.  387.  In  Massachusetts,  by  statute,  a  married 
"woman  may  be  executrix,  administratrix,  guardian,  or  trustee,  and  may 
bind  herself  and  the  estate,  without  her  husband  joining,  with  the  same 
effect  as  if  she  were  sole  ;  and  a  woman  may  continue  to  hold  the  trust  to 
which  she  has  been  appointed,  notwithstanding  her  subsequent  marriage. 

^  Lake  v.  De  Lambert,  4  Ves.  595.  The  trustee  in  this  case  had  mar- 
ried a  foreigner,  but  Lord  Chancellor  Loughborough  simply  remarked  "that 
it  was  very  inconvenient  for  a  married  woman  to  be  trustee." 

^  Brooks  V.  Brooks,  1  Beav.  531. 

'  Re  Campbell's  Trusts,  31  Beav.  176. 

(a)  See  Schluter  v.  Bowery  S.  Banks,  117  N.  Y.  125 ;  infra,  §  277, 
and  note. 

40 


CHAT.    II. ]  INFAXT8.  [§  52. 

§  52.  Infants  labor  under  still  greater  disabilities  than 
married  women,  for  a  married  wuman  lias  judgment,  discre- 
tion, and  capacity,  though  she  cannot  in  all  cases  freely  exer- 
cise them  ;  but  an  infant  wants  judgment  and  capacity.^  From 
this  want  of  judgment  and  capacity  an  infant  can  do  n<jthing 
that  requires  the  exercise  of  discretion.  It  is  true  that  his 
acts  are  voidable  only  and  not  void;^  but  every  act,  not 
simply  ministerial,  is  at  least  voidable ;  but  where  he  signs 
an  acquittance  without  receipt  of  the  money,  it  is  an  exercise 
of  discretion,  and  is  actually  void.^  An  infant  is  capable  of 
executing  a  naked  power  unaccompanied  with  any  interest, 
or  not  requiring  any  discretion.*  If  a  power  is  given  to  an 
infant  relating  to  his  own  estate,  it  must  be  inserted  in  the 
deed  that  he  may  execute  it  during  his  infancy,  or  his  exe- 
cuti(Mi  of  it  will  have  no  effect.^  As  was  shown  before, 
trustees  generally  exercise  powers  over  the  trust  fund  simply 
collateral  ;  ^  but  if  the  exercise  of  these  pcnvers  requires  the 
application  of  any  prudence  or  discretion,  an  infant  is  inca- 
l)ablc  of  executing  them.^  (a) 

^  Ilearle  v.  Greenbank,  3  Atk.  712 ;  1  Yes.  305 ;  Grange  v.  Tiving, 
Bridg.  O.  108;  Compton  v.  CoUinson,  2  Bro.  Ch.  377;  Sookett  v.  Wray, 
4  Bro.  Ch.  486.  See  Co.  Litt.  3  b,  128  a,  88  b,  172  a,  2G1  b,  Ilargiave's 
note  (4) ;  1  Watk.  on  Copyh.  24 ;  Eddleston  v.  Collins,  3  De  G.,  M.  &  G.  1 ; 
Toller's  Ex'rs,  31 ;  Halliburton  v.  Leslie,  2  Hog.  252. 

2  Ante,  §  33;  Lewiii  on  Trusts,  32. 

»  Russell's  Case,  5  Rep.  27  a;  Co.  Litt.  172  a,  2Gi  b;  1  Roll.  Ab.  730, 
F.  2 ;  Cropster  v.  Griffith,  2  Bland,  5. 

*  4  Kent,  321. 

6  Coventry  v.  Coventry,  2  P.  A\'ms.  229  ;  1  Sug.  on  Powers,  213-220 
(6th  ed.). 

6  Ante,  §  14. 

'  King  V.  Bellord,  1  Hem.  &  M.  343 ;  Hearle  v.  Greenbank,  3  Atlc  695 ; 
1  Ves.  298 ;  Grange  v.  Tiving,  Bridg.  O.  109. 

(u)  In  re  D'Angibau,  15  Ch.  1).  the  decree  after  he  comes  of  age. 

228,  233  ;  Levin  v.  Ritz,  41  N.  Y.  S.  ]McClellan  v.  McClellan,  65  :\Iaine, 

405.     An   infant  trustee,  who  pos-  500;  co/t/ra,  when  tlje  infant  is  sim- 

sesses  an  interest  in  the  trust  estate,  ply   a  trustee,   although   the   trust 

and  also  holds  the  legal  title,  is  en-  arises  by  implication  of  law.    Walsh 

titled  to  a  day  to  show  cause  against  v.  Walsh,  110  Mass.  377.     See  ^lel- 

41 


§  54.]  PARTIES   TO   TRUSTS,   ETC.  [CHAP.    II. 

§  53.  From  these  inconveniences  and  incapacities  attend- 
ing the  administration  of  a  trust  by  an  infant,  he  never  would 
be  appointed  by  a  court  to  such  an  office.  He  could  not  give 
a  valid  security  or  bond  for  the  safety  of  the  trust  fund,  nor 
could  a  court  decree  him  to  make  satisfaction  for  a  breach  of 
the  trust. ^  But  an  infant  has  no  privilege  to  cheat, ^  and  he 
will  not  be  protected  in  cunning  and  contrived  frauds.^ 

§  54.  But  an  infant  may  still  be  a  trustee;  he  may  be 
actually  named  as  trustee  in  any  instrument,  and  the  estate 
will  pass  to  him;  and  if  such  an  appointment  is  made,  he 
cannot  set  up  any  claim  to  the  beneficial  interest  in  the 
estate;^  but  a  court  of  equity  would  direct  the  execution  of 

1  Whitmore  v.  Weld,  1  Yern.  328  ;  Russell's  Case,  5  Rep.  27  a ;  Hind- 
marsh  V.  Southgate,  3  Russ.  324. 

2  Evroy  v.  Xicholas,  2  Eq.  Cas.  Ab.  489. 

8  Cory  V.  Gertcken,  2  Mad.  40 ;  Buckingham  v.  Drury,  2  Eden,  71,  72; 
Clare  v.  Bedford,  13  Vin.  536  ;  Watts  v.  Cresswell,  9  Vin.  415  ;  Beckett  v. 
Cordley,  1  Bro.  Ch.  358 ;  Savage  v.  Foster,  9  Mod.  37 ;  Overton  v.  Banis- 
ter, 3  Hare,  503  ;  Stikeraan  v.  Dawson,  1  De  G.  &  Sin.  503 ;  Wright  v. 
Snows,  2  De  G.  &  Sm.  321 ;  Davis  v.  Hodgson,  25  Beav.  177 ;  Hillyer  v. 
Bennett,  3  Edw.  Ch.  544  ;  Hill  v.  Anderson,  5  S.  &  M.  216. 

^  King  V.  Denison,  1  Ves.  &  B.  275;  Jevon  v.  Bush,  1  Vern.  343;  Lake 
V.  De  Lambert,  4  Ves.  596,  n. 

lor  r.  Porter,  25  Ch.  D.  158;  Younge  ecute  a  proper  conveyance  to  the 
V.  Cocker,  32  W.  R.  359 ;  Gray  v.  plaintiffs  to  be  settled  by  the  Judge 
Bell,  40  L.  T.  521;  Perry  v.  Perry,  in  case  the  parties  differ,"  and  giv- 
65  Maine,  399;  Smith  y.  McDonald,  ing  them  a  day  to  show  cause  — 
42  Cal.  484 ;  Davidson  v.  Bowden,  was  approved.  The  infant  himself 
5  Sneed,  129;  Hurt  v.  Long,  90  should  be  made  a  party  to  a  bill 
Tenn.  445 ;  Simmons  v.  Baynard,  affecting  his  title  to  real  estate. 
30F.  R.  532.  In  Mellor  r.  Porter,  Tucker  v.  Beau,  65  IMaine,  352; 
25  Ch.  D.  158,  upon  a  review  of  Wakefield  r.  Marr,  id.  311. 
the  authorities,  it  was  held  that  a  In  the  Federal  Courts  the  citizen- 
direction  to  convey  when  the  infant  ship  of  a  minor,  who  sues  by  his 
is  twenty-one  years  of  age  would  guardian,  determines  the  Court's 
not  warrant  declaring  him  a  trustee  jurisdiction,  contrary  to  the  case  of 
before  that  age;  and  in  the  case  of  a  cestui  que  trust.  Dodd  v.  Ghiselin, 
an  equitable  mortgage,  the  follow-  27  F.  R.  405;  Wiggins  v.  Bethinie, 
ing  form  of  direction  in  the  decree  29  id.  51 ;  see  Re  INIcClean,  20  id.  49; 
—  that  "  the  infant  defendants  Woolridge  v.  McKeuna,  8  id.  650. 
upon  their  attaining  twenty-one  ex- 
42 


CHAP.   II.]  ALIENS   AS   TRUSTEES.  [§  55. 

the  trust  by  himself  or  guardian,*  or  would  remove  him  and 
appoint  some  one  competent  to  act.  So  an  estate  charged 
with  a  trust  may  be  cast  upon  an  infant  by  descent,  or  by 
operation  of  law ;  as  where  a  father  bought  and  paid  for 
land,  but  took  the  conveyance  in  the  name  of  a  son  five  years 
old,  the  court  held  that  the  land  in  the  hands  of  the  son  was 
charged  with  a  resulting  trust  for  the  father. ^  In  another 
case,  where  the  father  had  purchased  land  in  the  name  of  an 
infant  son,  it  was  presumed  to  have  been  an  advancement, 
rather  than  to  make  the  infant  a  trustee.  ^  From  the  great 
inconvenience  attending  the  appointment  of  an  infant  as 
trustee,  a  strong  presumption  arises  that  property  conveyed 
to  an  infant  is  intended  for  his  benefit,  as  an  advancement 
or  otherwise,  and  the  court  will  not  infer  an  intention  that 
he  is  to  take  it  in  trust,  unless  it  distinctly  appears.^ 

§  55.  Aliens  can  take  and  hold  real  estate  by  grant  in 
trust  to  the  same  extent  as  they  can  take  and  hold  the  legal 
title ;  ^  that  is,  until  office  found ;  though  it  is  said  that  they 
cannot  take  by  act  of  law  as  by  descent.^  There  is  a  con- 
flict of  decisions,  whether  they  can  take  by  devise  or  not.^ 

1  Ex  parte  Sergison,  4  Ves.  149,  and  n. ;  In  Matter  of  Fallen,  1  Mc- 
Carter,  147. 

2  Binion  v.  Stone,  2  Freem.  1G9.  See  Bowra  v.  Wright,  4  De  G.  &  Sm. 
265. 

8  Lamplugh  v.  Laraplugh.  1  P.  Wins  112;  Matter  of  Rindle,  2  Edw.  585. 

*  Ibid.;  Bliiikhorne  v.  Feast,  2  Ves.  30;  Mumnia  r.  Mumma,  2  Vern.  19; 
Taylor  v.  Taylor,  1  Atk.  086;  Smith  v.  King,  16  East,  283.  See  also  Grey 
V.  Grey,  Finch,  338  ;  1  Ch.Cas.  296  ;  Elliott  v.  Elliott,  2  id.  231  ;  Ebrand  v. 
Dancer,  id.  26  ;  Scroope  v.  Scroope,  1  Ch.  Cas.  27;  Stileman  v.  Ashdown, 
2  Atk.  480  ;  Pole  r.  Pole,  1  Ves.  76. 

6  Attte,  §  36;  Marshall  i-.  Lovelass,  Cam.  &  Nor.  217. 

0  Orr  V.  Hodgson,  4  \\'heat.  4.'j3;  Wright  v.  Trust  Meth.  Ep.  Church, 
1  Hoff.  Ch.  202  ;  Buchanan  v.  Deshon,  1  liar.  &  G.  280 ;  Ex  parte  Du- 
pont,  1  Harp.  Ch.  5;  Trembles  v.  Harrison,  1  B.  Monr.  140;  Montgom- 
ery V.  Dorion,  7N.  H.  475;  Foss  v.  Crisp,  20  Pick.  121 ;  Smith  r.  Zaner, 
4  Ala.  99. 

'  In  Craig  v.  Radford,  3  Wheat.  594  ;  Atkins  v.  Kron,  2  Ired.  Ch.  58, 
it  was  hold  that  a  devise  to  an  alien  would  not  vest  the  title  in  him  ;  but 
in  Vaux  v.  Nesbit,  1  McCord,  Ch.   352;  Clifton  v.  Ilaig,  4  Des.  330; 

43 


§  56.]  PARTIES   TO   TRUSTS,   ETC.  [CIIAP.    II. 

But  an  alien  cannot  plead  his  alienaj^e  to  defeat  any  trust 
that  may  be  charged  upon  the  lands  that  come  to  him,  nor 
in  bar  of  any  contract  made  by  him  in  relation  to  the  pur- 
chase of  lands. ^  If  lands  in  the  hands  of  an  alien  charged 
with  a  trust  escheat  to  the  State,  the  State  as  a  general  rule 
takes  only  the  title  that  the  alien  had ;  and  there  are  statutes 
in  many  States  that  provide  for  carrying  the  trust  into 
execution.  It  has  been  held  that  an  alien  may  be  a  corpora- 
tor and  trustee  for  a  corporation;^  and  that  if  an  alien 
trustee  sold  and  conveyed  the  trust  estate,  equity  would  not 
set  the  sale  aside. ^  As  to  personal  property  aliens  have  the 
same  rights  and  privileges  as  citizens,  and  they  can  execute 
trusts  of  personal  chattels  to  the  same  extent  as  citizens. 
An  alien  may  take  a  mortgage  of  land  as  security  for  debt, 
and  he  may  have  a  decree  of  foreclosure  or  sale  of  the  land 
for  the  payment  of  the  debt.'*  But  if  the  alien  is  domiciled 
abroad,  it  is  an  objection  to  his  fitness  for  the  office,  as  he 
is  not  within  the  jurisdiction  of  the  court. ^  (a) 

§  56.  Lunatics  can  take  a  legal  title  by  descent  or  by 
devise,  and  they  can  take  by  purchase  or  grant,  although 
they  have  not  mind  enough  to  accept  the  conveyance.  A 
valid  acceptance  will  be  presumed  after  long  acquiescence 

Stephen  v.  Swann,  9  Leigh,  404,  it  was  held  that  a  devise  would  vest  the 
title  in  him  subject  to  escheat  on  office  found. 

1  Dunlop  V.  Hepburn,  1  Wheat.  179  ;  3  id.  231 ;  Scott  v.  Thorpe, 
1  Edw.  Ch.  512  ;  Waugh  v.  Riley,  8  Met.  290. 

2  Coinmeyer  i'.  United  German  Churches,  2  Sand.  Ch.  186. 

3  Ferguson  v.  Franklin,  6  Munf.  305  ;  Escheator  v.  Smith,  4  McCord, 
452. 

*  Iluiihes  V.  Edwards,  9  Wheat.  489. 

5  Mt'inertzhager  v.  Davis,  1  Coll.  C.  C.  335  ;  In  re  Tempest,  L.  R. 
1  Ch.  4S5. 

(a)  In  Indiana,  a  State  statute  cords  to  the  citizens  of  each  State  all 

providing  that   a   trustee   under   a  the  privileges  and  immunities  of  the 

written  instrument  shall  be  a  bona  citizens  in  the  several  States.     Roby 

fitle  resident  of  the  State,  has  been  v.  Smith,  131  Ind.  342.     See  1  Ames 

held  invalid   under  that  clause  of  on  Trusts  (2d  ed.),  250;   Shirk  v. 

the  Federal  Constitution  which  ac-  La  Fayette,  52  F.  R.  857. 
44 


CHAP.    II.]  BANKRUPT.  [§  58. 

by  all  parties,  or  if  tlic  cestui  que  trust  accc])t  the  deed,  it 
will  be  sufliciciit.^  JJut  lunatics  cannot  execute  a  trust  that 
requires  judgment  and  discretion,  as  they  are  incapable  of 
giving  a  valid  assent  that  will  bind  themselves,  the  estate, 
or  the  cestui  que  trust.^  Whenever  a  trust  estate  is  vested 
in  a  lunatic,  it  must  be  administered  by  his  guardian,  or  by 
the  court,  or  he  will  be  removed  and  a  comi)ctcnt  })crson 
appointed,  (a)  An  habitual  or  common  drunicard  may  be  a 
trustee,  but  he  may  be  removed.^ 

§  57.  A  religious  person,  who  l)y  vows  has  renounced  the 
world,  as  a  nun  or  monk,  may  be  a  trustee  or  guardian.  It 
is  a  matter  for  their  own  consciences,  whether  they  will  take 
such  an  office,  and  courts  cannot  regard  their  religious 
associations.^ 

§  58.  A  bankrupt  or  insolvent  is  competent  to  take,  hold, 
and  execute  a  trust.  The  trust  estate  docs  not  pass  to  his 
assignees,  nor  does  his  certificate  discharge  him  from  any 
fiduciary  debts  or  obligations. (^))     As  he  holds  only  for  the 

1  Eyrick  v.  Eetrick,  13  Penn.  St.  491  ;  Re  Bloomar,  2  De  G.  &  Jon.  88. 

2  Loomis  V.  Speucer,  2  Taige,  153;  Swartwout  v.  Uurr,  1  Barb.  495; 
Person  r.  Warren,  14  Barb.  488. 

8  Webb  V.  Dietrich,  7  W.  &  S.  401. 
4  Smith  V.  Young,  5  CJill,  197. 

(rt)  See  In  re  Leon,  (1892)  1  Ch.  under  the  Trustee  Act  of  1893,  the 

348;  In  re  Batho.  39  Ch.    D.  189.  Chancery  Court  may  appoint  a  new 

A  lunatic  was  declared  a  trustee  of  trustee   in  place  of   a   sole  trustee 

his  interest  in  land  to  be  partitioned,  who  is  a  lunatic  not  so  found,  but 

in  Caswell  v.  Sheen,  69  L.  T.  854.  cannot  in  such  case  make  a  vesting 

A  dumb  paralytic  is  not  necessarily  order.     In  re  M.,  [1899]  1  Ch.  79. 

a  person  of   unsound  mind   under  See  Plomley  v.  Richardson,  [1894] 

the  English  Trustee  Act  of    1850.  A.  C.  G32. 

In  re  Barber,  39  Ch.  D.  187.  (b)  A  person  who  receives  per- 

In  England,  under  the  Trustee  sonal  property  in  trust,  is  bound  to 

Acts  of  18.50  and  1852,  the  general  repay  the  proceeds  thereof,  if  sold, 

rule  was  that  where  a  vesting  order  even  after  he  has  been  discharged 

was  required  by  reason  of  a  trustee  in  insolvency.     Raphael  v.  Mullen, 

being  of  un.sound  mind,  the  Lunacy  171  Ma.'^s.  111. 

jurisdiction    must    be   resorted   to;  Under   the   Bankruptcy  Act  of 

45 


§  60.]  WHO   MAY   BE    CESTUIS   QUE    TRUST.  [cHAP.   II. 

cestui  que  trust,  he  cannot  charge  or  incumber  the  estate 
otherwise  than  for  the  beneficiary.  ^  A  witness  to  a  will 
who  is  incapable  of  taking  a  legacy  to  himself  may  yet  take 
a  legacy  in  trust  in  which  he  has  no  interest.^ 

§  50.  Cestuis  que  trust  are  not  incapable  of  taking  in  trust 
for  themselves  and  others,  but  they  are  not  altogether  fit 
persons  to  be  appointed,  by  reason  of  a  possible  conflict 
between  their  duty  and  interest.  Near  relatives  and  con- 
nections, like  husband  and  wife,  are  also  objectionable  as 
trustees,  as  by  reason  of  aft'ection  and  influence  frequent 
breaches  of  trust  may  happen,  and  other  irregular  proceed- 
ings are  always  to  be  feared ;  but  there  is  no  absolute  rule 
of  law  that  forbids  such  appointments,  and  they  are  some- 
times inevitable  ^  or  necessary. 

III.     Who  may  he  Cestuis  que  trust. 

§  60.  As  a  general  rule,  equity  follows  the  law,  and  all 
persons  who  are  capable  of  taking  the  legal  title  to  property 
may  take  the  equitable  title  as  cestuis  que  trusty  through  the 
medium  of  a  trustee.*  (a) 

1  Scott  V.  Surnam,  Willes,  402  ;  Carpenter  v.  Marnell,  3  B.  &  P.  41 ; 
Gladstone  v.  Hadwen,  1  M.  &  S.  526 ;  Ex  parte  Glanys,  1  Mont.  &  Mac. 
258;  Ex  parte  Painter,  2  Deac.  &  Ch.  584;  Butler  v.  Merchants  Ins.  Co. 
14  Ala.  798;  Shryock  v.  Waggoner,  28  Penn.  St.  431;  Harris  v.  Harris, 
29  Beav.  107;  Coperaan  v.  Gallant,  1  P.  Wms.  314;  Gardner  v.  Rowe, 
2  Sim.  &  St.  346;  Lounsbury  r.  Purdy,  11  Barb.  490;  Ludwig  v.  Highley, 
5  Barr,  132;  Welhelm  v.  Falmer,  6  Barr,  296 ;  Kep  v.  Bank  of  N.  Y.,  10 
Johns.  63 :  Bliss  v.  Pierce,  20  Yt.  25  ;  Ontario  Bank  v.  Mumford,  2  Barb. 
Ch.  5fl6. 

2  Hogan  V.  Wyman,  2  Oregon,  302. 

8  Wilding  V.  Bolder,  21  Beav.  222;  Ex  parte  Chxtton,  17  Jur.  988.  See 
also  In  re  Tempest,  L.  R.  1  Ch.  485. 

*  Sand  on  Uses,  370;  Lewin  on  Trusts,  35 ;  Hill  on  Trustees,  52;  Trot- 
ter V.  Blocker,  Porter,  269. 

1867,  a  debt  was  not  created  by  a  posed  in  the  debtor,  in  the  popular 

person  while  acting  in  a  *'  fiduciary  sense   of  those    terms.     Upshur   r. 

character,"  merely  because  it  was  Briscoe,  138  U.  S.  365,  375. 
created     under     circumstances     in  (n)  A  tribal  Indian,  who  cannot 

which   trust  or  confidence  was  re-  sue  in  the  Federal  courts,  but  can 
46 


Cll.vr.    II.]  ALIENS,   ETC.  [§  62. 

§  Gl.  A  trust  may  bo  declarod  in  favor  of  the  Crown. 
By  the  old  law  tlio  kin^  could  take  the  use  of  real  estate 
only  by  matter  found  of  record;^  but  Mr.  Hill  says  that  it 
has  never  been  decided  that  a  court  of  chancery  would  refuse 
to  execute  a  trust  in  land  in  favor  of  the  Crown,  if  found 
otherwise  than  by  matter  of  record. ^  The  king  can  take 
personal  projjerty  as  cestui  que  trust,  in  the  same  manner  as 
a  private  person.^ 

§  G2.  The  State  may  be  a  cestui  que  trust,  and  when  there 
are  no  statutes  to  forbid  it,  property  may  be  given  to  trustees 
for  the  use  of  the  State  or  the  United  States  in  the  same 
manner  as  for  the  use  of  individuals.  A  deed  to  a  trustee 
and  his  heirs  in  trust  for  the  State  of  South  Carolina  was 
held  to  vest,  by  the  statute  of  uses,  the  whole  legal  title  in 
the  State.*  And  a  deed  to  trustees  in  trust  to  sell  and  apply 
the  proceeds  to  pay  a  debt  due  to  the  United  States  from  the 

1  Bacon  on  Uses,  60  ;  Gilbert  on  Uses,  44,  204. 

2  Hill  on  Trustees,  5li;  Rogers  v.  Itogers,  18  Hun  (N.  Y.),  409  ;  Moke 
V.  Norrie,  21  id.  128. 

8  i\Iiddleton  v.  Spiccr,  1  Bro.  Ch.  201 ;  Brummel  v.  iMcPherson,  5 
Russ.  2G4;  Nightingale  r.  Goulbourno,  5  Hare,  484;  2  Phill.  5.04;  Mit- 
ford  V.  Reynolds,  1  Phill.  185;  Ashton  v.  Langdale,  4  Eng.  L.  &  Eq.  80. 

*  Lamar  v.  Simpson,  1  Rich.  Ch.  71. 

sue  in  the  courts  of  the  State,  may  upon  the  land,  ari.sos  when  the 
be  a  cestui  que  trust.  Felix  v.  Pat-  money  with  which  land  is  purchased 
rick,  145  U.  S.  317.  A  slave  could  is  loaned  to  the  purchaser.  Hitt  v. 
not  be  a  cestui  que  trust.  See  1  Ames  Applewhite  (Miss.),  20  So.  161, 1G2. 
on  Trusts  (2d  ed.),  214.  See  Dorrah  v.  Hill,  73  Miss.  787  ; 
A  third  person,  who  is  not  a  mere  Loftis  v.  Loftis,  94  Tenn.  232 ;  Akin 
volunteer,  but  is  compelled  by  judg-  v.  Jones,  93  id.  353;  Lewis  v.  Duane, 
ment  to  pay  the  debt,  secured  by  141  N.  Y.  302.  A  loan  may,  how- 
trust  deed,  of  the  cestui  que  trust,  is  ever,  create  a  resulting  trust  in  land 
subrogated  to  the  cestui's  right  to  by  way  of  mortgage.  Scott  r.  Beach, 
collect  his  claim  from  the  land.  172  111.  273.  Subrogation  is  not  a 
iEtna  Life  Ins.  Co.  v.  ^liddleport,  matter  of  strict  right  in  equity,  but 
124  U.  S.  534;  Holden  v.  Strick-  is  subject  to  the  court's  discretion, 
land,  116  N.  C.  185;  Glover,  Ap-  Aultman  v.  Bishop,  53  Neb.  542, 
pellant,  1G7  Mass.  280.  No  trust,  552. 
or  right  of  subrogation,  or  charge 

47 


§  64]  WHO   MAY    BE   CESTUIS   QUE    TRUST.  [cHAP.    II. 

grantor  is  valid,  notwithstanding  the  statute  which  forbids 
the  purchase  of  any  land  on  account  of  the  United  States, 
unless  authorized  by  act  of  Congress.^ 

§  63.  If  there  are  statutes,  like  the  statutes  of  mortmain, 
which  prevent  corporations  from  taking  the  legal  title  to 
lands,  they  cannot  evade  the  statutes  by  taking  the  legal  title 
to  trustees  and  the  beneficial  interest  to  themselves ;  thus 
they  cannot  be  cestuis  que  trust  in  lands  the  legal  title  to 
which  they  are  not  licensed  or  enabled  to  take.^  They  can 
be  the  cestuis  que  trust  of  personal  property,  to  the  same 
extent  as  individuals.^  So  voluntary  associations  may  be 
cestuis  que  trust  of  personal  property,  and  if  such  associa- 
tions have  an  authorized  agent,  treasurer,  or  secretary,  the 
trustees  may  act  under  his  directions  in  performing  the 
trust.*  (a) 

§  64.  If  an  alien  is  made  the  cestui  que  trust  of  land  he 
may  enjoy  it  as  against  all  but  the  State ;  but  the  State  can 
at  any  time  claim  the  equitable  interest.^  This  rule  applies 
where  a  mere  naked  trust  is  created  in  a  trustee  for  the 
benefit  of  an  alien.  But  if  the  trustee  is  to  do  anything  with 
the  land,  that  is,  if  the  trust  is  executory,  the  court  will  do 
nothing  to  transfer  the  right  of  the  alien  to  the  State.  As 
where  a  testator  directed  lands  to  be  sold  and  the  proceeds 
divided  among  certain  persons,  some  of  whom  were  aliens, 
the  court  considered  that  as  done  at  the  time  of  the  death 

1  Xeilson  v.  Lagow,  12  How.  107;  3  Stat,  at  Large,  568,  May  1,  1820. 

2  Hill  on  Trustees,  52;  Lewin  on  Trusts,  36. 
8  Ibid. 

*  Sangston  v.  Gordon,  22  Gratt.  755. 

6  Dumoncel  v.  Dumoncel,  13  Ir.  Eq.  92  ;  Vin.  Ab.  Alien,  A.  8;  God- 
frey V.  Dixon,  Godb.  275 ;  Barrow  v.  Wadkin,  24  Beav.  1 ;  King  v.  Hol- 
land, Al.  16;  Styl.  21;  Burney  w.  MacDonald,  15  Sim, 6;  Rittson  v.  Stordy, 
3  Sm.  &  Gif.  230;  Att.-Gen.  v.  Sands,  Hard.  495;  Fourdrin  v.  Gowdy, 
3  M.  &  K.  383;  Burgess  r.  Wheate,  1  Eden,  188;  Du  Hournielin  v.  Shel- 
don, 1  Beav.  79 ;  4  My.  &  Cr.  525 ;   Master  v.  DeCroismar,  11  Beav.  184. 

(a)  White  v.  Rice,  112  Mich.  403. 

48 


CHAP.    II.]  ALIENS,  ETC.  [§  65. 

which  was  ordered  t(j  be  done,  and  that  it  was  a  devise  of 
mere  personalty,  and  it  refused  to  allow  the  Crown  to  elect 
to  keep  the  funds  in  land  in  order  to  work  a  forfeiture.  ^  So 
where  an  ajront  to  collect  a  debt  for  an  alien  took  a  deed  of 
real  estate  in  trust  to  sell  and  pay  the  i)roceeds  to  the  alien 
creditor,  the  heirs  of  the  aprent  were  ordered,  having  sold 
the  land,  to  pny  the  proceeds  to  the  principal. ^  But  where 
an  alien  jjaid  the  money  for  lands,  and  took  the  deed  in  the 
name  of  a  citizen  as  trustee,  the  trustee  was  adjudged  to 
hold  the  land  in  trust  for  the  commonwealth.^  Equity  will 
not  raise  a  resulting  trust  in  favor  of  an  alien.*  Nor  will  it 
allow  a  legacy  given  to  an  alien  to  be  charged  upon  real 
estate,^  nor  lands  liable  to  escheat  to  be  sold  for  the  payment 
of  debts  in  order  that  aliens  may  take  their  legacies  out  of 
the  personalty.^  Aliens  may  be  the  ccstuis  que  trust  of  per- 
sonal property  without  objection;'  and  trustees  for  aliens, 
and  alien  cestuis  que  trust  may  maintain  actions  in  our 
courts  to  maintain  their  rights  in  the  trust  property.^ 

§  Go.  There  is  another  class  of  cases  that  illustrates  the 
principle  that  the  beneficial  donee  of  property  cannot  take 
as  cestuis  que  trust,  if  he  is  prohibited  from  taking  the  legal 
title  to  that  property ;  as  where  a  slave  is  prohibited  from 
holding  property,  he  cannot  be  made  a  cestui  que  trust  of 

1  Burney  v.  MacDonalfl,  15  Sim.  11;  Rittson  v.  Stordy,  3  Sm.  &  Gif. 
240;  Du  Hourmelin  v.  Sheldon,  1  Beav.  79;  4  My.  &  Cr.  525.  And  see 
Masters.  De  Croi.smar,  11  Beav.  184;  Barrow  v.  Wadkin,  24  Beav.  1; 
Craig  V.  Leslie,  3  Wheat.  563;  Austin  v.  Brown,  G  Paige,  44S;  Neilson  v. 
Lagow,  12  How.  107  ;  Com'th  v.  Martin,  5  Munf.  117;  Meakings  v.  Crom- 
well, 1  Selden,  136. 

2  Austin  V.  Brown,  6  Paige,  448;  McCaw  v.  Galbrath,  7  Rich.  Law, 
74. 

8  Hubbard  v.  Goodwin,  3  Leigh,  492. 

*  Leggett  V.  Dubois,  5  Paige,  Ch.  114;  Phillips  r.  Crammond,  2  Wash. 
C.  C.  441.  See  Taylor  v.  Benham,  5  How.  270,  and  Farley  v.  Shippen, 
Wythe,  135. 

6  Atkins  V.  Kron,  2  Tred.  Eq.  423. 

*  Trezavant  v.  Howard,  5  Des.  87. 

^  Bradwell  r.  Weeks,  1  Johns.  Ch.  206. 
8  Hamersley  v.  Lambert,  2  Johns.  Ch.  508. 
VOL.  I.  —  4  49 


§  66.]  WHO   MAY    BE   CESTUIS   QUE    TRUST.  [CHAP.    II. 

property.^  In  Virginia,  a  free  negro  was  prohibited  from 
holding  slaves,  and  it  was  held  that  he  could  not  be  a  cestui 
que  trust  of  slaves. ^  So  where  emancipation  was  forbidden, 
a  slave  could  not  be  the  cestui  que  trust  of  his  own  freedom.  ^ 
But  in  Mississippi  it  was  held  that  land  purchased  with 
money  furnished  by  a  slave  with  the  acquiescence  of  her 
master,  and  the  title  taken  in  the  name  of  a  freeman,  was 
held  in  trust  for  the  slave  after  her  actual  emancipation  by 
living  in  Ohio,  and  that  the  trust  could  be  enforced  against 
all  persons  who  took  the  land  with  notice  of  the  facts.*  So 
where  an  individual  took  stock  in  trust  for  a  corporation 
that  had  no  right  to  hold  shares  in  another  corporation,  it 
was  held  that  such  shares  did  not  go  to  the  assignees  upon 
the  bankruptcy  of  the  individual,  but  that  they  must  be 
disposed  of  as  the  corporation,  as  cestui  que  trust,  should 
direct.^ 

§  66.  But  in  charitable  trusts  the  cestuis  que  trust  are 
not,  and  need  not  be,  capable  of  taking  the  legal  title,  as 
when  property  is  given  in  trust  for  the  poor  of  a  parish,  or 
for  the  education  of  youth,  or  for  pious  uses,  or  for  any 
charitable  purpose,  the  beneficiaries  are  generally  unknown, 
uncertain,  changing,  and  incapable  of  taking  or  dealing 
with  the  legal  title;  but  such  trusts  are  valid  in  equity,  and 
courts  of  equity  will  administer  them  and  protect  the  rights 
of  the  cestuis  que  trust.^  And  in  trusts  not  charitable  it  is 
not  always  necessary  that  the  cestui  que  trust  should  be  in 
existence  at  the  time  of  the  creation  of  the  trust;  as  a  devise 
to  a  father  in  trust  for  accumulation  for  his  children  law- 
fully begotten  at  the  time  of  his  death  was  held  to  be  good, 

1  Skrine  v.  Walker,  3  Rich.  Eq.  262;  Pool  v.  Harrison,  18  Ala.  514. 

2  Dunlap  V.  Harrison,  14  Gratt.  2.51. 

8  Trotter  v.  Blocker,  Porter,  269;   Graves  v.  Allen,  1.3  B.  Monr.  190. 

*  Leiper  v.  Hoffman,  26  Miss.  615;  and  see  Frazier  v.  Frazier,  2  Hill, 
Ch.  305;  Ross  v.  Duncan,  Freem.  Ch.  603;  Osterman  v.  Baldwin,  6  Wall. 
116. 

6  Great  Eastern  Ry.  Co.  i;.  Turner,  L.  R.  8  Ch.  149;  Ex  parte  Wat- 
kins,  2  Mont.  &  A.  348. 

^  Post,  chapter  on  Charitable  Trusts. 
50 


CHAP.    II.]  ALIENS,   ETC.  [§  66. 

although  the  father  had  no  children  at  the  time  of  the  vest- 
ing of  the  funds  in  him  as  trustee/  So  an  illegitimate  child 
born,  or  in  ventre  sa  mhre,  may  be  a  cestui  que  trust  (a)  ;^  but 
a  trust  for  illegitimate  children  to  be  thereafter  begotten 
will  not  be  enforced,  as  being  against  good  morals.^  Nor 
will  a  court  of  equity  establish  or  execute  a  trust  that  is 
founded  upon  a  consideration  that  is  fraudulent,  or  malum 
in  se,  or  malum  prohibitum,  or  immoral,  or  corrupt,  or  con- 
trary to  public  policy.'*  But  a  trust  not  charitable  created  in 
prcescnti  for  cestuis  que  trust  does  not  take  effect  until  the 
cestuis  que  trust  are  identified ;  as  where  land  was  conveyed 
under  articles  of  agreement  in  trust  for  the  subscribers 
thereto,  the  title  of  the  grantor  was  not  divested  until  there 
were  subscribers.^  In  some  cases  a  person  is  capable  of 
taking  an  equitable  interest,  in  a  manner  in  which  the  legal 
interest  could  not  be  limited.  Thus  at  law  no  property  can 
be  so  limited  to  a  married  woman  as  to  exclude  the  legal 

1  Asburst  V.  Given,  5  Watts  &  S.  329 ;  Carson  v.  Carson,  1  Wins. 
(N.  C.)  24. 

2  Gabb  V.  Trendergast,  3  Eq.  R.  G48  ;  Pratt  v.  Flamer,  7  liar.  &  J.  10; 
Gardner  i'.  Hever,  2  Paige,  11 ;  Collins  v.  Hoxie,  9  Paige,  81 ;  In  re  Con- 
nor, 2  Jones  &  Lat.  456;  Evans  v.  Davies,  7  Hare,  498;  Owen  v.  Bryant, 
21  L.  J.  Ch.  860. 

8  Medworth  v.  Pope,  27  Beav.  21 ;  Wilkinson  v.  Wilkinson,  1  Younge 
&  C.  Ch.  657;  Pratt  v.  Mathew,  22  Beav.  528;  Howarth  v.  Mills,  L.  11. 
2  Eq.  389. 

*  Ownes  r.  Ownes,  23  N.  J.  Eq.  60 ;  Battinger  v.  Budenbecker,  63 
Barb.  404  ;  69  Barb.  395. 

6  Urkett  I'.  Coryell,  5W.  &  S.  61. 

(a)  Thompson  v.  Thomas,  27  ents'  marriage  are  presumed  legiti- 
L.  R.  Ir.  457.  As  the  law  fixes  no  mate,  but  the  presumption  of  legiti- 
limit  to  the  age  of  child-bearing,  a  macy  is  now  held  rebuttable.  See 
trust  for  a  woman's  "children  now  Burnaby  v.  Baillie,  42  id.  282;  Orth- 
living,  or  that  may  hereafter  be  wein  v.  Thomas,  127  111.  554 ;  Shu- 
born,"  continues  through  the  wo-  man  v.  Shuman,  83  Wis.  250;  2 
man's  life.  Forrest  v.  Porch,  100  Kent  Com.  (Mth  ed.),  209  n. 
Tenn.  391;  Bearden  v.  White  A  deed  of  the  father  for  his 
(Tenn.  Ch.),  42  S.  W.  476.  See  illegitimate  child's  benefit  has  a 
In  re  Hocking,  [1898]  2  Ch.  567  ;  good  consideration.  Couley  v- 
1  Ames  on  Trusts  (2d  ed.),  455,  n.  Nailor,   118   U.    S.    127. 

Children  born   after   their  par- 

51 


68.]  PROPERTY  OF   A   TRUST.  [CHAP.   II. 

rights  of  the  husband ;  but,  by  way  of  trust,  property  can  be 
so  given  to  her  uso  as  to  place  it  entirely  beyond  the  right 
of  enjoyment  by  the  husband.^  A  trust  for  the  heirs  of  A. 
is  valid  as  a  trust  for  the  children  of  A.^ 


lY.     }V7iat  Property  may  he  the  Subject  of  a  Trust. 

§  67.  Every  kind  of  valuable  property,  both  real  and  per- 
sonal, that  can  be  assigned  at  law  may  be  the  subject-matter 
of  a  trust.  Every  kind  of  vested  right  which  the  law  recog- 
nizes as  valuable  may  be  transferred  in  trust,  as  a  receipt 
for  a  medicine, 3  the  copyright  of  a  book,*  a  patent  right, ^  (a) 
a  trade  secret,^  or  growing  crops. '^ 

§  68.  At  common  law  no  possibility,  right,  title,  nor  cliose 
in  action  could  be  granted  or  assigned  to  strangers.^  But  in 
equity  the  rule  is  different,  and  choses  in  action,^  expec- 
tancies,^^ contingent  interests, ^^  and  even  possibilities  ^^  m^j 

1  Lewin  on  Trusts,  37. 

«  Flint  V.  Steadman,  36  Vt.  210. 

8  Green  v.  Folgham,  1  Sim.  &  St.  398. 

4  Sims  V.  Marryal,  17  Q.  B.  281. 

6  Russell's  Patent,  2  De  G.  &  Jon.  130. 

6  Morrison  v.  Moat,  6  Eug.  L.  &  Eq.  14;  9  Hare,  241. 

'  Robinson  v.  Maulden,  11  Ala.  908;  Grantham  v.  Hawley,  Hob.  132; 
Fetch  V.  Tutin,  15  M.  &  W.  110  ;  McCarty  v.  Blevins,  5  Yerg.  195. 

8  Lampet's  Case,  10  Coke,  48 ;  Thallhimer  v.  Brinckerhoff,  3  Cow.  623. 

»  Row  V.  Dawson,  1  Ves.  322 ;  Ryall  v.  Rolles,  1  Ves.  348 ;  Townsend 
V.  Windham,  2  Ves.  6 ;  Ex  parte  Alderson,  1  Mad.  53 ;  Burn  v.  Car- 
valho,  4  My.  &  Cr.  690 ;  Yeates  v.  Grover,  1  Ves.  Jr.  280  ;  Ex  parte  South, 
3  Swans.  393 ;  Morton  v.  Naylor,  1  Hill,  583 ;  Clemson  v.  Davidson,  5 
Binn.  392. 

10  Fitzgerald  v.  Vestal,  4  Sneed,  258 ;  Hobson  v.  Trevor,  2  P.  Wms.  191 ; 
Beckley  v.  Newland,  id.   182;  Wetherhed  v.  Wetherhed,  2  Sim.   183; 
Douglass  V.  Russell,  4  Sim.  184 ;  Langton  v.  Horton,  1  Hare,  549. 
u  Ibid. ;  Varish  v.  Edwards,  1  Hoff.  Ch.  382. 
12  Ibid. 

(a)  See   1   Ames  on   Trust  (2d  Shipping  Acts  now  distinguish  be- 
ad.), 194.     In  England,  there  could  tween  legal  and  beneficial  interests 
be  no  implied  trust  in  a  registered  therein.     See  Chasteauneuf  v.  Cap- 
British    ship;    but  the    Merchant  eyron,  7  A  C.  127. 
52 


CHAP.   II.]  CHOSES   IX   ACTION.  [§  69. 

bo  assigned,  and  a  valid  trust  created  in  them.  Equitable 
reversionary  interests  stand  upon  the  same  ground.^ 
Property  not  owned  by  the  assignor  at  the  time,  and  not 
even  in  esse,  may  be  assigned  in  equity  ;2  and  a  valid  trust 
may  be  created  in  a  naked  power  or  authority.  ^ 

§  09.  But  there  arc  some  choscs  in  action,  rights,  claims, 
and  interests  that  cannot  be  assigned  in  equity;  either 
because  some  statute  prohibits,  or  because  it  is  against 
public  policy  to  allow  assignments  of  them  to  strangers. 
Thus  an  ofiiccr  in  the  army  cannot  assign  or  pledge  his 
commission,*  nor  his  full  or  half  pay.^  A  judge  cannot 
assign  his  salary  ;^  nor  can  a  pension  given  for  the  honorable 
support  of  the  dignity  of  a  title  be  assigned.^  The  principle 
seems  to  be  that  when  a  salary,  annuity,  or  pension  is  given 
by  the  State  for  the  support  of  its  own  dignity  and  the 

1  Voyle  V.  Hughes,  2  Sm.  &  Gif.  18 ;  Kekewich  v.  Manning,  1  De 
G.,  M.  &  G.  187;  and  cases  supra. 

2  Penuock  w.  Coe,  23  How.  117;  Mitchell  v.  Winslow,  2  Story,  630; 
6  Law  Rep.  347 ;  Holroyd  r.  Marshall,  2  Gif.  382  ;  2  De  G.,  F.  &  J.  59G ; 

9  Jur.  N.  s.  213 ;  33  L.  J.  Ch.  193 ;  Hope  v.  Hayley,  5  El.  &  Bl.  845  ;  Calk- 
ins V.  Lockwood,  17  Conn.  154  ;  Langton  v.  Ilorton,  1  Hare,  549  ;  Brooks 
V.  Hatch,  6  Leigh,  534 ;  Leslie  v.  Guthrie,  1  Bing.  N.  C.  G97 ;  Field  v. 
Mayor  of  X.  Y.,  2  Selden,  179;  Robinson  v.  IMacdonald,  5  M.  &  S.  228; 
In  re  Ship  Warre,  8  Price,  2G9  ;  Stewart  v.  Kirkland,  19  Ala.  162  ;  Ilinkle 
V.  Wanzer,  17  How.  353  ;  Mc Williams  v.  Nisby,  2  S.  &  R.  509  ;  Wilson's 
Estate,  2  Barr,  325. 

8  Brown  v.  Higgs,  8  Ves.  570. 

*  Collier  v.  Fallon,  1  Turn.  &  Rus.  459 ;  and  see  L'Estrange  v.  L'Es- 
trange,  1  Eng.  L.  &  Eq.  153. 

6  Stone  V.  Lidderdale,  2  Anst.  533 ;  Priddy  v.  Rose,  3  :Mer.  102  ;  Tun- 
stall  V.  Boothby,  10  Sim.  540;  Flarty  v.  Odium,  3  Tr.  681 ;  Lidderdale  i'. 
Montrose,  4  T.  R.  248. 

«  Arbuthnot  v.  Norton,  5  Moore,  P.  C.  C.  219;  Cooper  «.  Reilly,  2Sim. 
5G0  ;  Palmer  r.  Bate,  6  Moore,  28;  2  Rrod.  &  Bing.  673  ;  Hill  v.  Paul,  8  CI. 
&  Fin.  295.  But  in  State  Bank  v.  Hastings,  15  Wis.  75,  it  was  held  that 
a  judge  could  assign  his  salary. 

'  Davis  V.  Marlborough,  1  Swanst.  79 ;  McCarthy  i\  Gould,  1  Ball  & 
Beatt.  387  ;  Price  v.  Lovett,  4  Eng.  L.  &  Eq.  110 ;  Grenfell  v.  Dean,  &c., 
2  Beav.  550.     See  also  Wells  v.  Foster,  8  M.  &  W.  149 ;  Spooner  v.  Payne, 

10  Eng.  L.  &  Eq.  207. 

53 


§  70.]  PROPERTY   OF   A    TRUST.  [CHAP.    IL 

administration  of  its  affairs,  it  is  not  becoming  that  its 
oflicers  should  deprive  themselves  of  the  means  of  support 
which  it  gives  to  them;  but  a  pension  or  annuity  for  past 
services  may  be  assigned.^  The  mere  right  to  file  a  bill  in 
equity  for  a  fraud  committed  upon  the  assignor,  or  to  sue  for 
a  tort,  cannot  be  assigned  and  a  trust  created  in  such  rights.  ^ 
A  mere  naked  expectancy  arising  from  a  peculiar  position, 
such  a  position  as  that  a  person  expects  to  make  a  favorable 
bargain  and  purchase  (and  he  employs  an  agent  to  negotiate 
the  jjurchase,  and  such  agent  purchases  for  another),  is  not 
such  property  that  a  trust  can  be  created  in  it.^ 

§  70.  The  question  has  been  frequently  mooted  in  courts, 
how  far  a  trust  could  be  engrafted  and  enforced  upon  foreign 
property,  or  property  beyond  the  limits  of  the  jurisdiction  of 
the  court  where  the  suit  is  pending.  In  regard  to  personal 
property  there  is  no  difficulty,  for  it  follows  the  person;  and 
if  the  court  has  jurisdiction  over  the  parties,  it  has  jurisdic- 
tion over  the  subject-matter,  and  can  enforce  a  trust  or  any 
other  equity.^  If  the  personal  property  is,  however,  in  fact 
beyond  the  jurisdiction  of  the  court,  there  may  arise  some 
practical  obstructions  to  the  execution  of  the  decrees  of  the 
court. ^  "Where  the  trust  is  created  by  a  judicial  decree  in 
another  State,  as  by  probate  of  a  will  in  New  York  State, 
the  trustee  is  accountable  in  the  courts  of  that  State ;  and 

1  Alexander  v.  Wellington,  2  Russ.  &  My.  35;  Tunstall  v.  Boothby, 
10  Sim.  452 ;  Feistal  v.  King's  College,  10  Beav.  491 ;  and  see  Berkley 
V.  King's  College,  10  Beav.  499,  and  Butcher  v.  Musgrove,  2  Beav.  550 ; 
Stevens  v.  Bagwell,  15  Ves.  139. 

2  Prosser  v.  Edmonds,  1  Yo.  &  Col.  481 ;  Gardner  v.  Adams,  12  Wend. 
297;  Dunklin  v.  Wilkins,  5  Ala.  199  ;  McKee  v.  Judd,  2  Ker.  622.  It  is 
not  intended  to  enter  into  all  the  niceties  of  the  law  of  assignments.  An 
exhaustive  statement  of  the  law  and  a  collection  of  all  the  cases  will  be 
found  in  Story's  Eq.  Jur.  §§  1040-1055,  and  3  Lead.  Cas.  in  Eq.  pp.  279- 
380  (3d  Am.  ed.). 

*  Garrow  v.  Davis,  15  How.  277. 

4  Hill  V.  Reardon,  2  Russ.  608;  Hill  on  Trustees,  44 ;  Lewin  on  Trusts, 
39;  Chase  r.  Chase,  2  Allen,  101;  Mason  v.  Chambers,  4  J.  J.  Marsh. 
401. 

6  Booth  V.  Clark,  17  How.  327. 
54 


CHAP.    II.]  LAND    IN    A   FOUEIGN    JURISDICTION.  [§  7L 

where  the  will  lias  not  been  proved  or  recorded  in  the  State 
of  the  former,  nor  any  letters  testamentary  or  of  administra- 
tion or  trusteeship  have  been  issued  there,  the  trustee  can- 
not be  compelled  to  execute  the  trust,  though  residing  in  the 
State  of  the  former ;  such  is  the  settled  law  of  Massachusetts.  ^ 
Such  a  case  differs  entirely  from  one  in  which  the  trust  is 
created  by  instrument  inter  partes  without  judicial  decree.^ 

§  71.  As  to  lands  lying  in  a  foreign  jurisdiction,  the  court 
will  enforce  natural  equities  and  compel  the  specific  per- 
formance of  contracts,  if  the  parties  are  within  its  jurisdic- 
tion. Thus  Lord  Eldon  allowed  a  lien  to  a  consignor  for 
advances  upon  estates  in  the  West  Indies;^  and  a  specific 
performance  of  articles  between  parties  for  the  settlement  of 
their  boundaries  was  enforced;*  effect  was  given  to  an 
equitable  mortgage  by  deposit  of  the  title-deeds  to  land  in 
Scotland,  though  by  the  law  of  Scotland  such  deposit  created 
no  lien;^  an  account  was  ordered  of  the  rents  and  profits  of 
lands  abroad ;  ^  and  an  absolute  sale  ^  or  a  foreclosure  of  a 
mortgage  ^  decreed ;  a  fraudulent  conveyance  was  relieved 
against,^  and  injunction  granted  against  taking  possession.  ^"^ 
Chief-Justice  Marshall  said:  "Upon  the  authority  of  these 
cases  and  others  which  are  to  be  found  in  the  books,  as 
well  as  upon  general  principles,  this  court  is  of  opinion  that 

^  Jenkins  v.  Lester,  131  Mass.  357,  and  cases  there  cited. 
2  Massie  v.  Watts,  6  Cranch,  148,  160. 
8  Scott  V.  Nesbitt,  14  Ves.  438. 

*  Penn  v.  Lord  Baltimore,  1  Ves.  444  and  Belt's  Sup. ;  Roberdeau  v. 
Rous,  1  Atk.  543,  West.  23;  Tullock  v.  Hartley,  1  Yo.  &  Col.  114;  Good 
V.  Good,  33  Beav.  314 ;  Portarlingtou  v.  Soulby,  3  My.  &  K.  104 ;  Athol 
V.  Derby,  1  Gh.  Gas.  221. 

6  Ex  parte  Pollard,  3  IMont.  &  Ayr.  310  ;  Mont.  &  Chit.  239 ;  Norris  v. 
Chambers,  29  Beav.  246  ;  Martin  v.  Martin,  2  R.  &  M.  507. 

*  Roberdeau  v.  Rous,  1  Atk.  543. 

7  Ibid. 

*  Toller  V.  Carteret,  2  Vern.  494. 

^  Arglasse  v.  Muschamp,  1  Vern.  75  ;  Archer  v.  Preston,  1  Vern.  77  ; 
1  Eq.  Abr.  133. 

10  Cranstown  v.  Johnston,  5  Ves.  278  ;  Buubury  r'.  Bunbury,  1  Beav.  318  j 
Hope  V.  Carnegie,  L.  R.  1  Ch.  320. 

55 


§  71.]  PROPERTY  OF  A  TRUST.  [CHAP.  II. 

in  case  of  fraud,  of  trust,  or  of  contract,  the  jurisdiction  of 
a  Court  of  Chancery  is  sustainable  wherever  the  person  be 
found,  although  lands  not  within  the  jurisdiction  of  that 
court  may  be  affected  by  the  decree."^  But  if  the  person  is 
not  within  the  jurisdiction  of  the  court,  and  the  land  is,  the 
court  cannot  decree  a  specific  performance  of  an  agreement 
for  a  sale.  2  If  a  trust  is  created  by  the  will  of  a  citizen  of  a 
particular  State,  and  his  will  is  allowed  by  the  Probate 
Court  of  that  State,  and  a  trustee  is  appointed  by  the  Pro- 
bate Court,  courts  of  equity  will  have  jurisdiction  over  the 
trust,  although  both  the  trustee  and  the  property  are  beyond 
the  jurisdiction  of  the  court.  Chief-Justice  Bigelow,  in 
determining  this  point,  said:  "The  residence  of  the  trustee 
and  cestui  que  trust  out  of  the  commonwealth  does  not  take 
away  the  power  of  this  court  to  regulate  and  control  the 
proper  administration  of  trust  estates  which  are  created  by 
wills  of  citizens  of  this  State,  and  which  have  been  proved 
and  established  by  the  courts  of  this  commonwealth.  The 
legal  existence  of  the  trust  takes  effect  and  validity  from  the 
proof  of  the  will,  and  the  right  of  the  trustee  to  receive  the 
trust  fund  is  derived  from  the  decree  of  the  Probate  Court. 
If  the  trustee  is  unfaithful  or  abuses  his  trust,  that  court 
has  jurisdiction  to  remove  him  in  concurrence  with  this 
court  on  the  application  of  those  beneficially  interested  in 
the  estate.  "3  And  where  A.  had  fraudulently  obtained  a 
deed  of  land,  in  a  foreign  State,  from  B.,  and  had  conveyed 
it  to  C.  without  consideration,  it  was  held  that  although  the 

1  Massie  v.  Watts,  6  Cranch,  160;  Farley  r.Sliippen,  Wythe,  135  ;  Kil- 
dare  v.  Eustace,  1  Vern.  419;  Ward  v.  Arredoodo,  Hopk.  213;  DeKlyn 
V.  Watkins,  3  Sand.  Ch.  185;  Guerrant  v.  Fowler,  1  Hen.  &  M.  4;  Shat- 
tuck  V.  Cassidy,  3  Edw.  Ch.  152 ;  Newton  v.  Bronson,  3  Ker.  587 ;  Sutphen 
V.  Fowler,  9  Paige,  280 ;  Epis.  Church  v.  Wiley,  2  Hill.  Ch.  584 ;  Dick- 
inson V.  Hoomes,  8  Gratt.  353 ;  Hughes  v.  Hall,  5  Munf.  431 ;  Vaughn  v. 
Barclay,  6  Whar.  392  ;  Watkins  v.  Holman,  16  Pet.  25  ;  Guild  v.  Guild, 
16  Ala.  121 ;  White  v.  White,  7  Gill.  &  J.  208.  But  see  Lewis  v.  Nelson, 
1  Mc  Carter,  94. 

2  Spurr  V.  Scoville,  3  Cush.  578  ;  Meux  v.  IMaltby,  2  Swaust.  277  ;  Fell 
r.  Brown,  2  Bro.  Ch.  276. 

8  Chase  v.  Chase,  2  Allen,  101 ;  Curtis  v.  Smith,  60  Barb.  9. 
56 


CHAP.    II.]  LAND   m   A   FOREIGN   JURISDICTION.  [§  72. 

courts  of  other  States  would  not  declare  such  deeds  to  be 
nullities,  yet  they  would  order  reconveyances  from  the 
parties  before  the  court;  and  if  such  parties  went  beyond  the 
jurisdiction,  the  court  could  appoint  special  commissioners 
to  execute  such  reconveyances.^  And  so  trustees  to  whom 
property  has  been  conveyed  by  the  owner  by  a  direct  convey- 
ance can  sue  in  any  and  all  courts  which  have  jurisdiction 
over  the  parties  or  the  subject-matter  of  the  suit;  but  if  the 
trustee  depends  upon  some  court  to  clothe  him  with  the 
office  and  title  of  trustee,  he,  like  an  administrator  or 
executor,  can  only  sue  within  the  country  or  State  over 
which  the  jurisdiction  of  the  court  appointing  him  extends. ^ 

§  72.  The  foundation  of  this  doctrine  is  the  jurisdiction 
of  the  court  over  the  person,  which  was  originally  the  only 
jurisdiction  of  courts  of  equity.^  They  cannot,  when  the 
property  is  in  a  foreign  jurisdiction,  make  a  decree  in  rem, 
binding  upon  the  land ;  but  they  can  enter  a  decree  in  per- 
sonam and  compel  its  performance  by  process  in  contempt;* 
hence  if  the  parties  arc  not  before  the  court,  or  the  court 
has  no  jurisdiction  over  them,  the  specific  performance  of  a 
contract  cannot  be  decreed;^  and  if  the  court  cannot  give 
relief  by  a  decree  against  the  person,  but  must  go  further 
and  make  a  decree  to  be  executed  by  its  own  officers  against 
the  land,  it  must,  of  course,  if  the  land  is  beyond  its  juris- 
diction, refuse  to  act.^(a)     It  is  not  necessary  that  the  person 

1  Cooley  V.  Scarlett,  38  111.  316. 

2  Curtis  V.  Smith,  6  Blatch.  537. 

*  Penu  V.  Baltimore,  1  Ves.  4-44 ;  Massie  v.  "Watts,  6  Cranch,  160. 

*  Ibid.;  White  v.  White,  7  Gill  &  J.  208  ;  Mead'r.  Merritt,  2  Paige, 
404. 

6  Spurr  V.  Scoville,  3  Cush.  578  ;  Meux  v.  Maltby,  2  Swanst.  277 ;  Fell 
V.  Browu,  2  Bro.   Ch.  276. 

"  Morris  v.  Remington,  1  Pars.  Eq.  387  ;  Bank  of  Virginia  i*.  Adams, 
1  Pars.  Eq.  547 ;  Blunt  v.  Blunt,  1  Hawks,  305  ;  White  v.  White,  7  Gill 

(a)  See  Cole  y.  Cunningham,  133  650.  Suit  does  not  lie  in  England 
U.  S.  107 ;  Cloud  v.  Greasley,  125  to  recover  land  in  a  colony  or  for- 
111.  313  ;  Potter  v.  Ilollister,  45  N.  J.  eigu  country.  Re  Holmes,  2  J.  & 
Eq  5U8 ;  Gibson  v.  Burgess,  82  Va.    H.  527  ;  Jenney  v.  Mackintosh,  33 

67 


§  72.]  PROPERTY   OF    A   TRUST.  [CHAP.   11. 

to  be  bound  by  a  decree  should  be  domiciled  within  the 
jurisdiction  of  the  court.  It  will  be  sufficient  if  the  person 
is  found  and  served  with  process  within  the  jurisdiction, 
and  a  ne  exeat  may  be  obtained  to  prevent  his  departing  until 
the  decree  of  the  court  is  performed;^  or  if  a  person  is 
prosecuting  a  suit  at  law  within  a  jurisdiction,  a  suit  in 
equity  may  be  maintained,  and  an  injunction  may  be  decreed 
against  him,  and  service  on  his  attorney  in  the  suit  at  law 
would  be  a  good  service  to  bring  him  within  the  jurisdic 
tion.'^  So  if  courts  of  equity  have  jurisdiction  over  the 
parties  to  a  controversy,  they  can  enjoin  them  from  proceed- 
ing in  the  courts  of  foreign  States  or  countries.  This  power 
does  not  depend  upon  any  superintending  power  of  the  courts 

&  J.  208  ;  Cartwright  v.  Pettus,  2  Ch.  Cas.214  ;  2  Swanst.  323  n.;  Water- 
house  V.  Stansfield,  9  Hare,  23-1,  10  Hare,  254 ;  Martin  v.  Martin,  2  R.  & 
^ly.  507 ;  Nelson  v.  Bridport,  8  Beav.  547  ;  Walker  v.  Ogden,  1  Dana, 
252;  Williams  v.  Mans,  6  Watts,  278;  Booth  v.  Clark,  17  How.  322; 
Hawley  v.  James,  7  Paige,  213  ;  White  v.  White,  7  Gill  &  J.  208. 

1  Mitchell  V.  Bunch,  2  Paige,  606 ;  Baker  v.  Dumaresque,  2  Atk.  66 ; 
Howden  v.  Rogers,  1  Ves.  &  B.  129  ;  Flack  v.  Holm,  1  Jac.  &  W.  406  ; 
Grant  v.  Grant,  3  Russ.  598;  Woodward  v.  Schatzell,  3  Johns.  Ch.  412  ; 
Gilbert  v.  Colt,  1  Hopk.  496. 

2  Chalmers  v.  Hack,  19  Maine,  124. 

Ch.  D.  595.  In  British  South  Africa  law  of  the  creator's  domicil.     Nel- 

Co.  V.  Companhia  de  Mo9ambique,  son  v.  Bridgport,  8  Beav.  527,  547; 

[1893]    A.   C.    602,   the    Supreme  In  re  Piercy  [1895],  1  Ch.  83;  De 

Court  of  Judicature  was  held  to  Puy  v.  Standard  M.  Co.,  88  Maine, 

have  no  jurisdiction  of  an  action  to  202  ;  Penfield  v.  Tower,  1  N.  D.  216; 

recover  damages  for  trespass  to  land  see    Spindle  v.  Shreve,  111    U.    S. 

abroad.     See  19  Law  Mag.  &  Rev.  542,   547 ;    Codman   v.   Krell,    152 

115;  49  Alb.  L.J.  125.  Mass.  214;    Proctor  v.   Clark,    154 

As  to  conflict  of  laws  in  regard  Mass.    45 ;    Rosenbaum   v.  Garrett 

to  trusts,  it  is  now  considered  im-  (N.  J.),  41  Atl.  252  ;  Fowler's  Ap- 

perative,  as  to  real  estate,  that  jur-  peal,   125  Penn.  St.  388  ;  Hope  v. 

isdiction  of  the  res  shall  be  sufficient  Brewer,   136  N.    Y.    126 ;  Cross  v. 

to  enable  adequate  relief  to  be  given  U.  S.  Trust  Co  ,  25  Abb.  N.  C.  166 ; 

in  all  matters  where  equitable  inter-  First  Nat'l  Bank  xk  Nat'l  Broadway 

ests  have  attached,  care  being  taken  Bank,  156  N.   Y.  459;  English  v. 

that  absent  parties  have  notice  and  Mclntyre,  51  N.  Y.  S.  697 ;  Yore  v. 

ample  oi:)portunity  to  protect  their  Cook,  67  111.  App.  586  ;  Purdom  v. 

rights,  while  trusts  in  personal  prop-  Pavey,  26  Can.  Sup.  412. 
erty  are  to  be  determined  by  the 
58 


CHAP.   II.]  LAND   IN   A   FOREIGN   JURISDICTION.  [§  72. 

of  one  country  over  those  of  another,  whicli  docs  not  exist; 
but  it  is  founded  wholly  upon  the  power  which  courts  of 
ecjuity  have  over  all  litigants  within  its  actual  jurisdiction. 
This  jurisdiction  is  in  personam^  and  the  decrees  are  directed 
against  the  persons  or  parties.  If  the  decree  should  be  dis- 
regarded, and  a  litigant  should  prosecute  a  suit  in  a  foreign 
tribunal,  no  action  could  be  taken  against  the  agents, 
officers,  or  judges  of  such  foreign  tribunal,  but  the  remedy 
would  be  confined  to  proceeding  against  the  party  who  has 
proceeded  in  contempt  of  the  injunction.^  There  is,  how- 
ever, an  exception  to  this  practice  in  the  case  of  the  courts 
of  the  several  States  and  of  the  courts  of  the  United  States. 
Tlicse  courts  have  concurrent  jurisdiction  over  many  causes; 
and  to  prevent  unpleasant  conflicts  of  jurisdiction,  it  has 
been  held,  upon  grounds  of  public  policy,  that  they  have  no 
power  to  restrain  or  enjoin  suitors  from  pursuing  their 
rights  in  the  courts  of  their  choice,  whether  of  the  State  or 
of  the  United  States.  ^ 

1  Story,  Eq.  Jur.  §§  899,  900 ;  Dehon  v.  Foster,  4  Allen,  545 ;  Great 
Falls  V.  Worster,  23  N.  H.  470 ;  Bank  v.  Rutland,  28  Vt.  470 ;  Hays  v. 
Ward,  4  Johns.  Ch.  123 ;  Vail  v.  Knapp,  49  Barb.  299  ;  Massie  v.  Watts, 
6  Cranch,  158,  IGG  ;  Angus  v.  Angus,  West  Ch.  23  ;  Moody  v.  Gay,  15 
Gray,  457;  Sutpheu  v.  Fowler,  9  Paige,  282;  Mitchell  v.  Buuch,  2  Paige, 
G15  ;  Mackintosh  v.  Ogilvie,  4  T.  R.  193  n.,  3  Swanst.  3G5  n.;  Cranstown 
V.  Johnston,  3  Yes.  179,  5  Yes.  277;  Bunbury  v.  Bunbury,  1  Beav.  318; 
Carron  Iron  Co.  t'.  Maclaren,  5  H.  L.  Cas.  416 ;  Beckford  v.  Kemble,  1  S. 
&  S.  7 ;  Harrison  v.  Gurney,  2  Jac.  &  W.  503 ;  Bowles  v.  Orr,  1  Y.  &  C. 
404  ;  Portarlington  r.  Soulby,  3  My.  &  K.  104;  Duncan  v.  McCalmont,  3 
Beav.  409;  Graham  v.  Maxwell,  1  Mac.  &  Gord.  71;  Briggs  v.  French, 
1  Sumii.  504;  Dobson  v.  Pearce,  1  Duer,  112,  2  Kern.  15G;  Pearce  v.  01- 
ney,  20  Conn.  514  ;  Cage  v.  Cassidy,  23  How.  109,  117;  Marsh  v.  Putnam, 
3  Gray,  566;  Brigham  v.  Henderson,  1  Cush.  430;  Beal  u.  Burchstead,  10 
Cush.  523;  Maclaren  i'.  Stainton,  16  Beav.  286.  The  case  of  Carroll  v. 
Farmers'  Bank,  Harrington,  197,  is  not  followed. 

2  Diggs  V.  Walcott,  4  Cranch,  179  ;  McKim  r.  Voorhies,  7  Cranch,  279  ; 
Sumner  v.  Maroy,  3  W.  &  ]\I.  119;  Coster  v.  Griswold,  4  Edw.  Ch.  377  ; 
English  r.  Miller,  3  Rich.  Eq.  320.  See  also  Mead  v.  ISIerritt,  2  Paige, 
402;  Bicknell  v.  Field,  8  Paige,  410;  Burgess  v.  Smith,  2  Barb.  Ch.  276; 
Grant  v.  Quick,  2  Sandf.  612;  Croft  v.  Lathrop,  2  Wall.  Jr.  103;  Cruik- 
shanks  v.  Roberts,  G  Madd.  104  ;  Bushby  i'.  ^luuday,  5  Madd.  307  ;  Joues 
r.  Goddes,  1  Phillips  Ch.  725. 

59 


73.]  EXJPKESS   TKUSTS,   ETC.  [CHAP.   III. 


CHAPTER  III. 

EXPRESS  TRUSTS,  AND  HOW  EXPRESS  TRUSTS  ARE  CREATED  AT 
COMMON  LAW,  SINCE  THE  STATUTE  OF  FRAUDS,  AND  IN  PER- 
SONAL PROPERTY,  AND  HEREIN  OF  VOLUNTARY  CONVEYANCES 
OR   SETTLEMENTS   IN   TRUSTS. 

§  73.     Division  of  trusts,  according  to  the  manner  of  their  creation. 
§§  74-77.     Trusts  at  common  law. 
§  74.  At  common  law,  a  writing  not  necessary  to  convey  land. 

§  75.  Uses  might  also  be  created  without  writing,  and  so  may  trusts,  in 

States  where  the  statute  of  frauds  is  not  in  force. 
§  76.  Parol  cannot  control  a  written  trust  nor  engraft  an  express  trust 

on  an  absolute  conveyance. 
§  77.  Same  rule  as  to  trusts  created  by  parol. 

§  78'     The  statute  of  frauds,  and  its  form  in  various  States. 
§  79.  Effect  of  the  statute  upon  the  creation  of  express  trusts. 

§§  80,  81.  Effect  of  the  different  forms  of  the  words  of  the  statutes  in  the 

several  States. 
§  82.  How  express  trusts  may  be  proved  or  manifested  under  the 

statute. 
§  83.  Certainty  of  the  terms  of  the  trust,  and  the  person  by  whom  it  is 

to  be  declared. 
§§  84,  85.  Trusts  declared  or  proved  by  answers  in  chancery. 

§  86.  Trust  in  personal  property  may  be  created  by  parol. 

§§  87,  88.  Trusts  arising  from  gifts  mortis  causa  and  for  charitable  uses. 

§  89.     Statute  of  wills,  and  the  execution  of  wills. 
§  90.  Trust  cannot  be  created  in  a  will,  unless  it  is  properly  executed,  to 

pass  the  property. 
§§91,  92.  But  might  be  manifested  by  a  recital  in  a  will  not  properly  exe- 

cuted. 
§  93.  The  effect  of  the  necessity  of  probate  of  wills. 

§  94.  Parol  evidence  cannot  convert  a  bequest  in  a  will  into  a  trust. 

An  executor  is  a  trustee  of  the  surplus. 
§  95.     When  a  trust  is  completely  created. 

An  agreement  upon  a  valuable  and  legal  consideration  will  be 

carried  into  effect  as  a  trust  or  a  contract. 
§§  96-98.  If  a  complete  trust  is  created  without  consideration,  it  will  be 

carried  into  effect. 
§  97.  But  if  anything  remains  to  be  done  to  complete  the  trust,  it  will 

not  be  carried  into  effect,  if  without  consideration. 
§  99.  Whether  a  lawful  trust  is  completely  created  or  not  a  question  of 

fact  in  each  case. 

60 


CHAP.    III.]  AT   COMMON   LAW.  [§  74. 

§  100.  Trust  for  a  stranger  withoat  coosideraticm  not  completed  \rithoat 

transfer  of  the  le<^al  title. 
§  101.  But  if  the  legal  title  cannot  be  transferred,  a  different  rule  will 

apply. 
§  102.  If  the  subject  of  the  proposed  trust  is  an  equitable  interest,  the 

legal  title  need  not  be  transferred. 
§  103.  The  instrument  of  trust  need  not  be  delivered. 

§  104.     If  once  perfected  cannot  be  destroyed,  though  voluntary. 
§  105.  Notice  not  necessary  to  trustee  or  cestui  que  trust. 

§§  106,  107.     Voluntary  settlements  upon  wife  and  children. 
§  108.  When  they  will  not  be  enf(jrced. 

§  109.  Tendency  of  the  rule  in  the  United  States. 

§  110.  Marriage  a  valuable  as  well  as  meritorious  consideration. 

§111.     Effect  of  a  seal. 
§  111  a.  New  York  Statute  Law. 

§  73.  Having  considered  who  may  be  the  parties  to  a 
trust,  and  what  may  be  the  subject-matter  of  it,  it  is  now  to 
bo  considered  in  what  manner  a  trust  may  be  created,  or 
how  it  may  arise.  Trusts  are  divided  in  this  respect  into 
direct  or  express  trusts,  implied,  resulting,  and  constructive 
trusts.  Direct  or  express  trusts  are  created  by  the  direct  or 
express  words  of  a  grantor  or  settlor.  Implied,  resulting, 
and  constructive  trusts  arise  by  operation  of  law  upon  the 
transactions  of  the  parties,  and  they  will  be  hereafter  dis- 
cussed. This  chapter  will  treat  of  the  creation  of  direct  or 
express  trusts.  In  this  connection  it  will  be  necessary  to 
inquire :  (1)  how  trusts  were  created  in  lands  at  common  law 
prior  to  the  statutes  of  frauds  and  of  wills;  (2)  how  trusts 
are  created  in  lands  since  the  statutes ;  (3)  how  trusts  may 
be  created  in  personal  property;  and  (4)  the  effect  of  a 
voluntary  conyeyance  or  declaration  of  trust. 

§  74.  At  common  law  a  deed  in  writing  was  not  necessary 
to  transfer  land.  What  was  called  a  feoffment  was  the 
common  and  earliest  mode  of  conveyance.  The  feoffment 
was  a  short  and  simple  charter,  and  was  accompanied  by 
livery  of  seizin ;  the  feoffor  went  upon  the  land  in  the 
presence  of  the  freeholders  of  the  neighborhood  with  the 
charter,  and  made  a  manual  delivery  to  the  feoffee  of  some 
symbolical  thing  in  the  name  of  delivering  seizin,  or  owner- 
ship and  possession  of  all  the  lands  named  in  the  charter. 
But  not  even  this  deed  or  charter  was  necessary.     The  land 

61 


§  75.]  EXPRESS   TRUSTS,   ETC.  [CHAP.   III. 

could  be  conveyed  by  mere  livery  of  seizin  in  the  presence 
of  the  freeholders  of  the  neighborhood,  who  might  be  called 
upon  to  witness  the  act.  The  feoffment  and  livery  of  seizin 
operated  upon  and  transferred  the  possession,  and  it  barred 
the  feoffor  from  all  future  right  or  possibility  of  right  in  the 
land,  and  vested  an  estate  in  freehold  in  the  feoffee.  ^ 

§  75.  It  has  been  a  mooted  question  whether  at  common 
law  uses  could  be  raised  by  parol,  or  even  by  deed  without 
seal,  upon  a  conveyance  of  lands.  ^  But  there  seems  to  be  no 
good  reason  for  the  doubt.  As  the  estate  itself  could  be 
transferred  without  writing,  it  would  seem  to  follow  that 
uses  declared  at  the  time  in  the  presence  of  witnesses  might 
be  effectually  established.  Mr.  Sanders  says  that  in  their 
commencement  uses  were  of  a  secret  nature,  and  were 
usually  created  by  a  parol  declaration. ^  Mr.  Lewin  says 
that  trusts  like  uses  are  in  their  own  nature  averrahle,  i.  e., 
may  be  declared  by  word  of  mouth  without  writing,  in  the 
absence  of  a  statute  requiring  it ;  as  if  an  estate  had  been 
conveyed  unto  and  to  the  use  of  A.  and  his  heirs,  a  trust 
might  have  been  raised  by  parol  in  favor  of  B.*  Lord  Chief- 
Baron  Gilbert  reconciled  most  of  the  conflicting  cases  by 
stating  the  law  thus:  "At  common  law  a  use  might  have 
been  raised  by  words  upon  a  conveyance  that  passed  the 
possession  by  some  solemn  act,  as  a  feoffment;  but  where 
there  was  no  such  act,  then  it  seems  a  deed  declaratory  of 
the  use  was  necessary ;  for  as  a  feoffment  might  be  made  at 
common  law  by  parol,  so  might  the  uses  be  declared  by 
parol.  But  where  a  deed  was  necessary  for  passing  the 
estate  itself,  it  was  also  requisite  for  the  declaration  of  the 
uses.  Thus  a  man  could  not  covenant  to  stand  seized  to 
uses  without  a  deed;  but  a  bargain  and  sale  by  parol  has 

1  4  Kent,  480,  481 ;  2  Sand.  Uses  and  Trusts,  1-8. 

'  2  Story,  Eq.  Jur.  §  971 ;  Hill  on  Trustees,  55. 

«  1  Sand,  on  Uses,  14,  218  (2d  Am.  ed.). 

*  Lewin  on  Trusts,  41.     See  Fordyce  v.  Willis,  2  Bro.  Ch.  587;  Ben- 
bow  V.  Townsend,  1  My.  &  K.  506  ;  Bayley  v.  Boulcott,  4  Russ.  347;  Crabb 
I'.  Crabb,  1  My.  &  K.  511 ;  Kilpin  v.  Kilpin,  id.  520;  Bellasis  v.  Compton, 
2  Vern.  294 ;  Thruxton  v.  Att.  Gen.,  1  Vera.  341. 
62 


CHAP.   III.]  AT   COMMON   LAW.  [§  75. 

raised  a  use  without." '     Lord  Tliurlow  observed  that  "he 
hud    been    accustomed   to   consider   uses   as   averrable;  but 
perhaps  when  looked  into,  the  cases  may  relate  to  feoffment, 
and  not  to  conveyances  by  bargain  and  sale  or  lease   and 
release. "  ^     And  Duke  says  expressly,  "  that  when  the  things 
given  may  pass  without  deed,  then  a  charitable  use  may  be 
averred  by  witnesses;  but  where  the  things  cannot  pass  with- 
out deed,  there  charitable  uses  cannot  be  averred  without  a 
deed   proving   the  uses."'*    This  question  is  almost  purely 
speculative  in  the  United  States,  where  the  statute  of  frauds 
is  perhaps  universally  adopted,  and  all  conveyances  of  land 
and  of  interests  in  land  must  be  by  deed  acknowledged  and 
recorded;  but  it  may  arise  when  questions  arise  upon  trans- 
actions prior  to  the  passage  of  the  statute,  as  it  arose  in 
Ohio  upon  a  conveyance  before   1810,  the   time  when  the 
statute   of  frauds  was   adopted    in   that   State;  and  it  was 
determined  that  a  trust  in  land  could  be  created,  at  common 
law,  by  parol,*  and  as  the  seventh,  eighth,  and  ninth  sec- 
tions were  omitted  from  the  Ohio  statute,   a  trust   in  real 
estate  may  still  be  created  by  parol. ^     The  same  question 
arose  in  Connecticut,  and  it  was  denied  that  at  common  law 
a  trust  in  lands  could  be  raised  by  parol.     The  court  said 
that  the  rules  of  evidence  as  well  as  the  statute  prevented 
it.  ^    In  some  other  States  the  statute,  or  at  least  the  seventh 
section  of  the  statute,  has  not  been  adopted ;  and  in  those 
States  it  has  been  determined  that  trusts  in   land   can   be 
proved   by  parol,  as   in   Texas, '^  North   Carolina,^  Tcnnes- 

1  Gilbert  on  Uses,  270;  Adiington  v.  Cann,  3  Atk.  141. 

2  Fordyce  v.  Willis,  3  Bro.  Ch.  5S7. 

8  Duke  on  Char.  141 ;  Adiington  i-.  Cann,  3  Atk.  141. 

*  Fleming  v.  Donohoe,  5  Ohio,  250;  but  see  Starr  v.  Starr,  1  Ohio, 
321;  Ready  r.  Kearsley,  14  ^lich.  215;  Mclntire  v.  Skinner,  4  Greene,  89. 

fi  Harvey  v.  Gardner,  41  Ohio  St.  646. 

•  Dean  v.  Dean,  6  Conn.  287.  Contra,  Ready  v.  Kearsley,  14  Mich. 
215. 

'  Miller  v.  Thatcher,  9  Tex.  482;  Hale  v.  Layton,  16  Tex.  202  ;  Bailey 

8  Fay  t^.  Fay,  2  Hayw.  131 ;  Shelton  v.  Shelton,  5  Jones,  Eq.  292  ;  Riggs 
V.  Swann,  6  id.  118;  McLaurin  v.  Fairly,  id.  375;  Wright  r.  Cain,  93  N. 
C.  301 ;  Link  v.  Link,  90  N.  C.  235. 

63 


§  76.]  EXPKESS   TKUSTS,   ETC.  [CHAP.   III. 

see,^  and  Virginia. ^  In  Pennsylvania,  under  the  act  of  1799, 
it  was  determined  that  trusts  in  land  might  be  created  by 
parol.  3  The  statute  was  amended,  however,  in  1851.^  In 
Kentucky,  the  seventh  section  was  omitted;  but  the  courts 
treat  all  parol  agreements  that  would  create  a  trust  as 
agreements  for  the  sale  or  purchase  of  some  interest  in  land, 
and  therefore  void  as  within  the  fourth  section  of  the 
statute.^  In  nearly  all  the  other  States  the  statute  of  frauds 
was  substantially  re-enacted  at  an  early  day  in  its  full 
extent,  and  in  those  States  it  has  not  since  been  an  open 
question  whether  parol  trusts  could  be  created.^ 

§  76.  It  must  also  be  observed  that  if  a  trust  is  declared 
in  writing,  courts  never  permit  parol  proof  of  a  trust  to 
contradict  an  intention  expressed  upon  the  face  of  the 
instrument  itself,^  for  that  would  be  to  allow  parol  evidence 

V.  Harris,  19  Tex.  102;  Osterman  v.  Baldwin,  6  "Wall.  116;  Leakey  v. 
Gunter,  25  Tex.  400;  Grooves  v.  Rush,  27  Tex.  231;  Dunham  v.  Chat- 
ham, 21  Tex.  231  ;  Creney  v.  Dupree,  21  Tex.  20  ;  Pierce  v.  Fort,  60  Tex. 
464,  and  cases  cited. 

1  Thompson  v.  Thompson,  1  Yerg.  100;  McLanahan  v.  McLanahan, 
6  Humph.  99;  Haywood  v.  Ensley,  8  Humph.  460;  Wilburn  v.  Spofford, 
4  Sneed,  705. 

2  Bank  of  United  States  v.  Carrington,  7  Leigh,  576  ;  Walraven  v. 
Lock,  2  P.  &  H.  549;  Lockwood  v.  Canfield,  20  Cal.  126;  Hidden  v.  Jor- 
dan, 21  Cal.  92. 

3  German  v.  Gabbald,  3  Binn.  302  ;  Wallace  v.  Duffield,  2  S.  &  R.  521 ; 
Slaymaker  t',  St.  Johns,  5  Watts,  27 ;  Murphy  v.  Hubert,  7  Barr,  420 ; 
Tritt  V.  Crotzer,  13  Penn.  St.  452;  Wetherell  v.  Hamilton,  15  id.  195; 
Money  v.  Herrick,  18  id.  128;  Blyholder  v.  Gilson,  id.  134.  See  Freeman 
V.  Freeman,  2  Pars.  Eq.  81. 

*  Shoofstall  V.  Adams,  2  Grant's  Cas.  209 ;  Barnett  v.  Dougherty,  32 
Pa.  St.  371. 

6  Parker  v.  Bodley,  4  Bibb,  102 ;  Childs  v.  Woodson,  2  Bibb,  72. 

«  See  Browne's  Statute  of  Frauds,  §§  79-82  ;  Anding  v.  Davis,  38  Miss. 
574;  Harper  v.  Harper,  5  Bush,  177  ;  Wolf  v.  Corley,  30  Md.  356;  Eaton 
V.  Eaton,  35  N.  J.  L.  290;  Knox  v.  McFarren,  4  Col.  586;  Thomas  v. 
Merry,  113  Ind.  83;  McGinness  v.  Barton,  71  Iowa,  644;  Hain  v.  Robin- 
son, 72  Iowa,  735 ;  Ingham  v.  Burnell,  31  Kansas,  333 ;  Lawrence  v.  Law- 
rence, 14  Oregon,  77. 

■^  Lewis  V.  Lewis,  2  Ch.  R.  77;  Finch's  Cas.  4  Inst.  86;  Childers  v. 
ChUders,  3  K.  &  J.  310 ;  1  De  G.  &  J.  482 ;  Fordyce  v.  WilUs,  3  Bro.  Ch. 
64 


CHAP.    III.]  AT   COMMON    LAW.  [§  76. 

to  vary,  contradict,  or  annul  a  written  instrument;  nor  is 
it  necessary,  in  order  to  exclude  evidence,  that  the  beneficial 
estate  should  be  expressly  conferred  upon  the  grantee  of  the 
legal  estate,  for  a  trust  cannot  be  raised  Ijy  parol  if,  from 
the  nature  of  the  instrument  or  from  any  circumstance  of 
evidence  appearing  upon  the  face  of  it,  an  intention  can  be 
clearly  imjilicd  of  making  the  holder  of  the  legal  estate  also 
the  holder  of  the  beneficial  estate.^  Thus  a  trust  cannot  Ijc 
proved  by  parol  where  a  valuable  consideration  was  paid 
from  the  grantor's  own  money.  ^  Oral  proof  cannot  be  hoard, 
to  engraft  an  express  trust  on  a  conveyance  absolute  in  its 
terms. ^  (a)  Nor  will  subsequent  declarations  of  the  grantor, 
oral  or  written,  avail  for  this  purpose.*  To  establish  by 
parol  that  the  grantee  in  an  absolute  deed  is  a  trustee,  it 

587;  Leman  v.  Whitley,  4  Russ.  423 ;  Lloyd  v.  Inglis,  1  Des.  333  ;  Sims  v. 
Smith,  11  Ga.  198;  Harris  v.  Barnett,  3  G rat.  339  ;  Dickenson  r.  Dicken- 
son, 2  Murph.  279;  Steere  v.  Steere,  5  Johns.  Ch.  1 ;  Gainus  v.  Cannon, 
42  Ark.  503. 

1  Ibid.  ;  Lewiu,  42,  5th  ed.  ;  Gilbert  on  Use.s,  56,  57  ;  Pilkington  r. 
Bailey,  7  Bro.  P.  C.  5-;G  ;  Dean  v.  Dean,  G  Conn.  285;  Hutchinson  v.  Tin- 
dall,  2  Green,  Ch.  2.57;  Starr  v.  Starr,  1  Ohio,  321;  Movan  v.  Hays,  1 
Johns.  Ch.  343;  Philbrooke  v.  Delano,  29  IMaine,  410;  Clagett  v.  Hall,  9 
Gill  &  J.  80.  See  notes  to  Woollam  v.  Hearn,  2  Lead.  Cas.  Eq.  404 ;  Irn- 
ham  V.  Child,  1  Bro.  Ch.  02  ;  Bartlett  v.  Pickersgill,  1  Ed.  515. 

2  Ihid. 

'  Kelly  I'.  Karsner,  72  Ala.  110;  Law.son  v.  Lawson,  117  111.  98 ;  Green 
V.  Gates,  73  Mo.  122;  Hansen  v.  Berthelson,  19  Neb.  433  ;  Cain  i-.  Cox,  23 
W.  Va.  594 ;  Pavey  v.  American  Ins.  Co.,  50  Wis.  221. 

*  Phillips  t'.  South  Park  Com'rs,  119  111.  626. 

(a)  See  Lovett  v.  Taylor,  54  N.  Bank,  164  Mass.  482,  486 ;  Raphael 

J.  Eq.  311  ;    Wood   v.   Perkins,  57  v.  Mullen,  171  Mass.  Ill;  Ditmars  v. 

Fed.  Rep.  258  ;  Myers  r.  Myers,  167  Smith,  38  N.  Y.  S.  1036  ;  Beckett  y. 

111.  52;    Walton  v.  Follansbee,  165  Allison,  188  Penn.  St.  279;    Heb- 

111.  4.S0,  486  ;  Ilemstreet  r.  Wheeler,  ron  v.  Kelly,  75  Miss.  74 ;  First  Xat. 

100  Iowa,  290;  Wei.sham  r.  Hooker  P.ank  r.  Fri.-s,  121  X.  C.  241.     But 

(Okl.),.^4  Pac.  464.     A  conveyance  although  an  ab.solute  deed  may  be 

of   personal   property,    absolute    in  proved  to  be  a  conveyance  by  way  of 

form,   may    always   be   shown    by  mortgage  or  trust,  a  recital  that  an 

clear  evidence  to  have  been  made  iti  assignment  is  in  trust  is  conclusive, 

trust  or  by  way  of  security.     INI  in-  See  Caldwell  v.  Fulton,  31  I'l-nn.  St. 

chin  V.   Minchin,    157    Mass.    2G.")  ;  47 -t  :  72  Am.  Dec.  760 ;  McDermith 

Riley  w.  Hampshire  County  National  v.  Voorhees,  16  Col.  402. 


VOL. 


I.  — 5  65 


§  77.]  EXPRESS   TRUSTS,  ETC.  [CHAP.   III. 

must  bo  shown  that  the  whole  or  a  part  of  the  purchase- 
monoy  was  not  his,  or  that  fraud,  artifice,  solicitation,  or 
persuasion  entered  into  the  induceraents  for  executing  the 
deed.  A  mere  breach  of  a  parol  agreement  is  not  enough  to 
create  a  trust. ^  A  parol  trust  is  not,  however,  an  absolute 
nullity  in  any  case,  but  rests  in  the  election  of  the  trustee  in 
those  cases  where  the  cestui  cannot  enforce  it.  The  courts 
will  protect  the  trustee  in  the  execution  of  the  trust  if  he 
chooses  so  to  do,  and  as  far  as  possible  will  protect  the 
beneficiaries  in  the  enjoyment  of  the  fruits  of  its  execution. ^ 
But  where  A.  agreed  to  purchase  land  for  B.,  and  purchased 
it  and  took  an  absolute  title  to  himself,  it  was  held  that  B., 
not  being  privy  to  the  deed,  was  not  bound  by  it,  and  might 
prove  a  trust  by  parol. ^  And  where  one  holds  lands  in 
secret  trust  to  defraud  creditors,  a  subsequent  parol  agree- 
ment by  which  the  land  is  to  be  held  in  trust  for  the 
creditors,  <fcc.,  will  be  good.^ 

§  77.  If  a  trust  is  once  effectually  created  by  parol,  it 
cannot  subsequently  be  revoked  or  altered  by  the  party 
creating  it,  for  it  is  governed  by  the  same  rules  that  govern 
trusts  created  by  writing.^  And  if  a  parol  trust  has  been 
executed  it  cannot  be  revoked,  and  if  money  has  been  paid 
upon  it,  it  cannot  be  recovered  back.^  The  declarations  of 
the  grantor,  to  create  a  trust,  must  be  prior  to,  or  con- 
temporaneous with,  the  conveyance,  for  it  would  be  against 
reason  and  the  rules  of  evidence  to  allow  a  man  who  has 
parted  with  all  interest  in  an  estate  to  charge  it  with  any 

1  Ilollinshead's  App.,  103  Penn.  St.  158. 

2  Karr  v.  Washburn,  56  Wis.  303. 

3  Strong  V.  Glasgow,  2  Murph.  289  ;  Squire's  App.,  70  Penn.  St.  266. 
*  Langsdale  v.  Woollen,  99  Ind.  575. 

6  Kilpin  V.  Kilpin,  1  :\I.  &  K.  531  ;  Adlington  v.  Cann,  3  Atk.  151  ; 
Freeman  v.  Freeman,  2  Pars.  Eq.  81 ;  Crabb  v.  Crabb,  1  M.  &  K.  51 1  ; 
Walgrave  v.  Tibbs,  2  K.  &  J.  313  ;  Lee  r.  Ferris,  2  K.  &  J.  3.57 ;  Russell  v. 
Jackson,  10  Hare,  204 ;  Lomax  v.  Ripley,  3  Sm.  &  Gif.  48;  Inre  Dunbar, 
2  Jon.  &  La.  120  ;  Brown  v.  Brown,  12  Md.  87  ;  Greenfield's  Est.,  14  Penn. 
St.  489;  Kirkpatrick  v.  IMcDonald,  11  id.  387;  Tritt  v.  Crotzer,  13  id.  4.j1. 

6  Eaton  V.  Eaton,  35  N.  J.  L.  290. 
66 


CHAP.    III.]  AT    COMMON    LAW.  [§  77. 

trust  or  inciiml)rancc  after  such  conveyance  ;^  (a)  nor  Ciin 
the  cestui  que  trust  give  his  own  dechirations  iu  evidence  to 
create  a  trust  in  his  favor;  but  where  parties  may  be  wit- 
nesses, he  can  testify  to  the  facts  like  any  other  witness; 
and  if  the  circumstances  arc  such  as  to  raise  a  resulting  or 
implied  trust  npon  the  conveyance,  the  person  entitled  to 
such  beneficial  interest  has  the  right  at  any  time  to  declare 
the  trust. 2  The  declarations  of  a  trustee  can  bo  given  in 
evidence  to  show  how  he  held  the  estate;**  that  is,  in  those 
States  where  the  trust  may  be  proved  by  parol.  But  these 
declarations  must  be  clear  and  explicit,  and  point  out  with 
certainty  both  the  subject-matter  of  the  trust  and  the  person 
who  is  to  take  the  beneficial  interest.  Casual  and  indefinite 
expressions  of  mere  inchoate  intentions,  not  carried  into 
effect,  are  insuificient  to  raise  a  trust.*  If  a  pension  from 
the  government  is  granted  to  A.,  a  trust  cannot  be  raised  by 
parol  in  favor  of  B.,  for  a  pension  is  conferred  as  an  honor, 
and  is  founded  u])on  the  personal  services  and  merits  of  the 
annuitant.^ 

1  Adlington  v.  Cann,  3  Atk.  145;  Walgrave  v.  Tibbs,  2  K.  &  J.  313; 
Lee  t'.  Ferris,  2  K.  &  J.  357;  Russell  v.  Jackson,  10  Hare,  201;  Loniax  v. 
Ripley,  3  Srn.  &  Gif.  48 ;  Brown  v.  Brown,  12  j\Id.  87 ;  In  re  Dunbar,  2 
Jon.  &  La.  120;  Tritt  v.  Crotzer,  13  Tenn.  St.  451 ;  Ivory  v.  Burns,  50  id. 
303;  Bennett  v.  Fuliner,  49  Penn.  St.  155;  Knox  v.  McFarren,4  Col.  586. 
See  Chapman  v.  AVilbur,  3  Oregon,  320,  for  a  particular  case. 

'^  Bellasis  v.  Coin[)ton,  2  Vern.  204;  Lee  v.  Iluntoon,  1  lIofE.  Ch.  447; 
Harris  v.  Barnett,  3  (Irat.  339  ;  Reid  v.  Reid,  12  Rich.  Eq.  213. 

*  Ambrose  v.  Ambrose,  1  P.  Wms.  322  ;  Gardner  v.  Rowe,  2  S.  &  S. 
346 ;  5  Russ.  258 ;  Wilson  v.  Dent,  3  Sim.  385  ;  Willard  v.  Willard,  56 
Penn.  St.  119;  Dollinger's  App.,  71  id.  425. 

*  Kilpin  V.  Kilpin,  1  U.  &  K.  520 ;  Benbow  v.  Townsend,  1  id.  500  ; 
Bayley  v.  Boulcott,  4  Russ.  345;  Harrison  v.  McMeunoniy,  2  Edw.  Ch. 
251;  Slocumb  v.  Mar.shall,  2  Wash.  C.  C.  398;  Sidle  v.  Walters,  5  AVatts, 
389;  Mercer  v.  Stock,  1  S.  &  ^l.  Ch.  479;  Hurst  r.  lAIcXeil,  1  AVash.  C.  C 
70;  Smith  v.  Patton,  12  AV.  Va.  511;  Childs  v.  Wesleyan  Cemetery  Ass., 
4  Mo.  App.  74. 

6  Fordyce  v.  Willis,  3  Bro.  Ch.  587. 

(n)  Boyd  r.  Boyd,  103  111.  Oil  ;     Phillips  v.  Sherman  (Texas),  39  S. 
Burling  r.  Newlands,  112  Cal.  476;     W.  187. 
Boyd    V.    Cleghorn,    94    Va.   780; 

67 


§  78.]  EXPRESS    TRUSTS,   ETC.  [CHAP.   III. 

§  78.  The  seventh  section  of  the  statute  of  frauds  enacted 
that  all  declarations  or  creations  of  trusts  or  confidences  in 
any  lands,  tenements,  or  hereditaments,  "  shall  be  manifested 
and  proved  by  some  writing  signed  by  the  party  who  is  by 
law  to  declare  such  trust,  or  by  his  last  will  in  writing,"  or 
else  they  shall  be  utterly  void  and  of  none  effect. 

Sec.  8.  Provided  always  that  where  any  conveyance  shall 
be  made  of  any  lands  or  tenements  by  which  a  trust  or  con- 
fidence shall  or  may  arise  or  result  by  the  implication  or 
construction  of  law,  or  be  transferred  or  extinguished  by  an 
act  or  operation  of  law,  then  and  in  every  such  case  such 
trust  or  confidence  shall  be  of  like  force  as  the  same  would 
have  been  if  this  statute  had  not  been  made,  anything  here- 
inbefore to  the  contrary  notwithstanding. 

Sec.  9.  All  grants  or  assignments  of  any  trust  or  confi- 
dence shall  likewise  be  in  writing,  signed  by  the  party 
granting  or  assigning  the  same,  or  by  such  last  will  or  devise, 
or  else  shall  likewise  be  utterly  void  and  of  none  effect. ^ 

1  29  Car.  II.  c.  3,  §§  7,  8,  9. 

In  Arkansas,  Florida,  Georgia,  Illinois,  Maryland,  jNIissouri,  New  Jer- 
sey, and  South  Carolina,  the  statute  of  Charles  is  re-enacted,  almost  in 
■words,  and  the  trust  or  confidence  must  be  "  manifested  or  proved  by 
some  writing  signed  by  the  party." 

In  Alabama,  California,  Maine,  Massachusetts,  Michigan,  Mississippi, 
New  Hampshire,  Rhode  Island,  Vermont,  and  Wisconsin,  "  the  trust 
must  be  created  or  declared  by  instrument  in  writing  signed  by  the  party 
creating  or  declaring  the  same." 

In  New  York,  the  seventh  section  was  re-enacted ;  but  in  the  revised 
statutes  it  was  enacted  "  that  the  trust  should  be  created  or  declared  by 
deed  or  conveyance  in  writing,"  signed,  etc. ;  but  in  ISGO  it  was  enacted 
"  that  any  writing  signed  by  the  parties  "  should  be  sufficient. 

In  Pennsylvania,  the  seventh  section  was  not  enacted,  and  trusts  could 
be  created  and  proved  by  parol;  but  in  1856  the  seventh  section  was  sub- 
stantially enacted. 

In  Texas,  North  Carolina,  Tennessee,  Virginia,  Connecticut,  Delaware, 
Kentucky,  Indiana,  and  Ohio,  the  seventh  section  does  not  seem  to  be  re- 
enacted.     See  ante,  §  75. 

In  Iowa,  declarations  and  creations  of  trust  or  powers  in  relation  to  real 
estate  must  be  executed  in  the  same  manner  as  deeds  of  conveyance. 

The  ninth  section  seems  to  be  in  force  in  all  the  States. 
68 


CHAP.   III.] 


STATUTE    OP   FRAUDS. 


[§79. 


§  79.  Wherever  this  statute  or  the  substance  of  the  statute 
is  in  force,  express  trusts  in  realty  cannot  be  proved  by 
paroL'  {(i)     In  suits  to  establish  or  enforce  trusts  in   real 

1   Gerry  v.  Stiuison,  60  Maiue,  ISO;  Stevenson  i-.  Crapnell,  111  111.  19. 


(«)  See  Ducie  v.  Ford,  138  U.  S. 
5S7 ;  jNIoran  v.  Somes,  154  Mass. 
200;  Fitzgerald  v.  Fitzgerald,  1(J8 
Ma.ss.  488;  Taft  v.  Dimond,  16  R.  I. 
584 ;  Ward  v.  Ward,  59  Conn.  188, 
19G;  Wentworth  v.  Sliibles,  89 
Maine,  107  ;  Bickford  v.  Bickford, 
08  Vt.  525;  McKee  r.  Griggs,  51 
N.  J.  Eq.  178 ;  Blackburn  v.  Black- 
burn, 109  N.  C.  488;  Keller  v. 
Strong,  104  Iowa,  585 ;  Pearson  v. 
Pearson,  125  lud.  341 ;  Moore  v. 
Horsley,  156  111.  36;  Ellis  v.  Hill, 
162  id.  557;  Kyle  v.  Wills.  106  id. 
501,  511 ;  Dick  v.  Dick,  172  id.  578; 
McDearmon  v.  Burnhani,  158  id.  55; 
Cameron  r.  Nelson  (Xeb.),  77  X.  W. 
771 ;  Thomas  t'.  Churchill,  48  Neb. 
266;  You  Trotha  v.  Bamberger,  15 
Col.  1;  Farrand  v.  Beshoar,  9  Col. 
291;  Simons  v.  Bedell  (Cal.),  55 
Pac.  3  ;  Rogers  v.  Ramey,  137  Mo. 
598;  Dover  v.  Rhea,  108  N.  C.  88; 
Brock  V.  Brock,  90  Ala.  80;  Guntert 
V.  Guntert  (Tenn.),  37  S.  W.  890  ; 
Levis  V.  Kengla,  8  App.  D.  C.  230; 

169  U.  S.  234. 

A  trust  in  personal  property  may 
be  created  and  proved  by  parol,  but 
an  express  trust  in  land  cannot  be 
so  created.  Chase  v.  Perley,  148 
Ma.ss.  289;  Taft  v.  Stow,  107  Ma.ss. 
303;  Bath  Savings  Inst'n  v.  Ilathorn, 
88  Maine,  122 ;  Ilirsh  i-.  Auer,  146 
K.    Y.   13;    Godschalk   r.   Fulmer, 

170  111.  04;  Pitney  v.  Bolton,  45 
N.  J.  Eq.  639  ;  Eipper  r.  Benner, 
113  Mich.  75;  Bedell  v.  Scoggins 
(Cal),  40   Pac.  954;    Ray  i;.    Sim- 


mons. 11  R.  I.  206;  Gadsden  v. 
Whaley,  14  S.  C.  210.  But  although 
an  express  trust  in  land  cannot  be 
established  by  parol,  a  parol  agree- 
ment to  hold  the  proceeds  of  a  sale 
of  the  land  in  trust  for  another,  if 
based  upon  a  sufficient  considera- 
tion, is  valid.  Worley  v.  Sipe,  111 
Ind.  238;  Thomas  v.  Merry,  113  id. 
83;  Talbott  v.  Barber,  11  Ind.  App. 
1,  7.  Laud  subsequently  bought 
with  trust  property  will  be  im- 
pres.sed  with  the  tru.st.  Cobb  v. 
Knight,  74  Maine,  253.  No  special 
form  of  words  is  necessary  to  create 
an  express  trust.  Gisborn  v.  Charter 
Oak  L.  Ins.  Co.,  142  U.  S.  326; 
O'Rourke  v.  Beard,  151  Mass.  9; 
MuUins  V.  Mullins,  79  Hun,  421; 
People  V.  Powers,  83  id.  449;  Stein- 
hardt  v.  Cunningham,  130  N.  Y. 
292.  Delivery  is  necessary  to  make 
a  signed  declaration  of  trust  bind- 
ing. Govin  V.  De  Miranda,  30 
N.  Y.  S.  550;  27  id.  1049. 

An  express  trust  can  only  be 
created  by  conveying  some  estate 
or  interest  to  the  intended  trustee. 
Nichols  r.  Emery,  109  Cal.  323. 
Such  a  trust  is  necessarily  e.\clusive 
of  any  implied  trust.  Mayfield  v. 
Forsyth,  104  111.  32 ;  Coleman  v. 
Parran,  43  W.  Va.  737. 

The  statute  of  frauds  does  not 
apply  when  a  trust  results  by  opera- 
tion of  law.  Valentine  i'.  Richardt, 
126  N.  Y.  272;  Sanford  v.  Sanford, 
139  U.  S.  042;  Hudson  r.  White,  17 
R.  I.  519;  Von  Trotha  r.  Bamber- 
69 


§  79.]  EXPRESS   TRUSTS,    ETC.  [CHAP.    III. 

estate  parol  proof  is  insufficient.  ^  They  must  be  manifested 
or  proved  by  some  writing,  signed  by  the  party  to  be  charged 
with  the  trust.  They  need  not  he  created  and  declared  in 
writing,  but  only  manifested  or  proved  by  writing;  for  if 
there  be  written  evidence  of  the  existence  of  the  trust,  the 
dano-er  of  parol  evidence,  against  which  the  statute  was 
directed,  is  effectually  removed.^  It  may  be  questioned 
whether  it  was  not  the  intention  of  the  statute  that  the 
creation  or  declaration  itself  should  be  in  writing;  for  the 
ninth  section  enacts  that  "all  grants  and  assignments  of  any 
trust  or  confidence  shall  likewise  be  in  writing,  signed  by  the 
party  granting  or  assigning  the  same,  or  by  his  last  will  or 
devise;"  but  whatever  may  have  been  the  actual  intention 
of  the  legislature,  the  construction  put  upon  the  clause  is 
now  firmly  established.^  A  mere  admission  in  writing  that 
parol  promises  to  hold  the  land  in  trust  were  made  at  the 
time  of  the  conveyance  is  not  enough  to  give  life  to  the  trust.* 

1  Todd  V.  Munson,  53  Conn.  579.  It  is  to  be  remembered,  however, 
that  in  suits  to  enforce  contracts,  correct  mistakes,  and  punish  or  prevent 
frauds,  it  may  be  necessary  to  show  incidentally  an  express  trust  by  parol. 
Id.  592.  And  so  a  parol  trust  may  be  proved  in  order  to  show  that  the 
apparent  owner  has  no  interest  in  the  land  which  equity  will  subject  to 
the  lien  of  a  judgment.     Hays  v.  Reger,  102  Ind.  524. 

2  Forster  v.  Hale,  3  Ves.  Jr.  707;  5  Ves.  315;  Smith  v.  Mathews,  3  De 
G.,  F.  &  J.  139;  Randall  v.  Morgan,  12  Ves.  74;  Unitarian  Society  v. 
Woodbury,  14  Me.  281  ;  Steere  v.  Steere,  5  Johns.  Ch.  1 ;  Movan  v. 
Hays,  1  id.  339;  McCubbin  r.  Cromwell,  7  Gill  &  J.  157;  Barrell  v.  Joy, 
16  Mass.  221 ;  Pinney  v.  Fellows,  15  Vt.  525  ;  Rutledge  v.  Smith,  1  Mc- 
Cord,  Ch.  119;  Johnson  v.  Ronald,  4  Munf.  77;  Hutchinson  v.  Tindall, 
2  Green,  Ch.  357;  Lane  v.  Ewing,  31  Mo.  75;  Safford  v.  Rantoul,  12 
Pick.  233 ;  Gibson  v.  Foote,  40  Miss.  788 ;  Reid  v.  Reid,  12  Rich.  Eq. 
213.  Numerous  other  cases  might  be  cited ;  but  the  rule  is  so  well  estab- 
lished that  it  is  not  necessary. 

3  Lewin  on  Trusts,  45 ;  Black  v.  Black,  4  Pick.  236. 
*  Scott  V.  Harris,  113  111.  447. 

ger,  15  Col.  1;   Roby  v.  Colehour,  a  trust  from  the   parties'  acts  and 

135  111.  300;   Myers  v.  Myers,  167  relations     not    dependent     merely 

111.  52;  Ryan  v.  O'Connor,  41  Ohio  upon  oral   evidence.      McCahill   v. 

St.  368;  Davis  v.  "Whitehead  [1894],  McCahill.  32  X.  Y.  S.  836 ;  Sherley 

2  Ch.  133  ;  or  when  equity  imposes  v.  Sherley,  97  Ky.  512. 
70 


CHAP.   III.]  STATUTE   OF  FRAUDS.  [§  81. 

It  is  well  established  that  the  interest  of  the  cestui  que  trust 
in  land  cannot  be  conveyed  by  parol.' 

§  80.  In  many  of  the  United  States  the  words  of  the 
seventh  section  are  replaced  by  words  to  the  effect  that  "the 
trust  must  be  created  or  declared  by  an  instrument  in  writ- 
ing signed  by  the  party;"2(a)  and  the  question  has  arisen 
whether  this  is  a  change  of  the  law  as  established  under 
the  words  of  the  original  statute  of  frauds. 

§  81.  The  question  has  not  been  directly  adjudged  in  a 
reported  case  raising  the  exact  point;  but  it  has  arisen 
incidentally  before  the  courts,  and  the  intimations  are  that 
these  words  do  not  change  the  law,  and  that  "created  and 
declared"  are  equivalent  to  "manifested  and  proved."  In 
practice,  the  great  majority  of  trusts  are  not  created  by  a 
deed  or  conveyance  of  land,  but  they  arise  from  the  trans- 
actions and  agreements  of  parties ;  and  if  these  transactions 
or  agreements  are  evidenced  in  writing,  the  trust  is  suffi- 
ciently created,  declared,  manifested,  or  proved.  Thus  Mr. 
Justice  Bennett,  in  Vermont,  where  the  words  are  "created 
and  declared  by  instrument,"  said,  that  "our  statute  is  the 
same  in  effect  as  the  English  statute.  "^  And  Mr.  Justice 
Story  said,  that  "in  his  opinion,  there  was  no  substantial 
difference  between  the  Massachusetts  statute  of  frauds " 
(which  is  in  substance  the  same  as  the  statute  of  Vermont) 
"and  the  statute  of  29  Car.  II.  c.  3;  and  such  is  the  conclu- 
sion to  which  I  have  arrived  upon  an  examination  of  these 
statutes."*  And  in  Wisconsin,  where  the  statute  is  the 
same  as  the  statutes  of  Massachusetts  and  Vermont,  it  was 
held  that  an  express  trust  need  not  be  declared  in  express 
terms;  that  it  is  sufficiently  declared  or  created  if  shown  by 
any  proper  written  evidence,  such  as  an  answer  to  a  bill  in 

1  Ricliards  v.  Richards,  9  Gray.  313  ;  Smitli  v.  Burnham,  3  Siiran.  435. 

2  See  ante,  §  78.  note.     Ribb  v.  Hunter,  79  Ala.  351. 
8  Pi  11  nock  V.  Clou^h,  17  Vt.  .508. 

*  Jeukins  v.  Eldredge,  8  Story,  29i. 

(a)  See  1    Ames  on  Trusts  (^d  ed.),  176,  n. 

71 


§  81.]  EXPRESS   TRUSTS,   ETC.  [CHAP.    III. 

equity,  note,  letter,  or  memorandum,  disclosing  facts  which 
create  a  fiduciary  relation.^  In  New  York,  the  words  of  the 
statute  were  that  "  the  trust  should  be  created  or  declared 
by  deed  or  conveyance  in  writing."  In  relation  to  this  Mr. 
Justice  Strong  said,  that  "  the  definition  of  the  term  convey- 
ance given  in  the  Revised  Statutes  ^  comprehends  a  declara- 
tion of  trust,  although  not  under  seal,  as  it  is  an  instrument 
by  which  the  title  to  such  estate  may  be  affected  in  law  or 
equity. "  ^  In  another  case,  Chief-Justice  Ruggles  said : 
"The  statute  prescribes  no  particular  form  by  which  the 
trust  is  to  be  created  or  declared.  Under  our  former 
statute,  in  relation  to  this  subject,  it  was  only  necessary 
that  the  trust  should  be  manifested  in  writing,  and  there- 
fore letters  from  the  trustee  disclosing  the  trust  were  suffi- 
cient; such  is  the  law  of  England.*  Our  present  statute 
requires  that  the  trust  should  be  created  or  declared  by  deed 
or  conveyance  in  writing,  subscribed  by  the  party  creating  or 
declaring  the  trust  ;^  but  it  need  not  be  done  in  the  form  of 
a  grant.  A  declaration  of  trust  is  not  a  grant.  It  may  be 
contained  in  the  reciting  part  of  a  conveyance.  Such  a 
recital  in  an  indenture  is  a  solemn  declaration  of  the  exist- 
ence of  the  facts  recited ;  and  if  the  trustee  and  the  cestui 
que  trust  are  parties  to  the  conveyance,  the  trust  is  as  well 
and  effectually  declared  in  that  form  as  in  any  other.  "^  (a) 
Upon  sound  reason,  then,  and  upon  the  decided  cases,  it 
would  seem  that  the  peculiar  form  of  words  in  some  of  the 
statutes  of  the  American  States  has  not  altered  the  general 
rule,  as  established  under  the  English  statute ;  and  that  the 
same  evidence  would  be  generally  received  in  the  United 
States  to  establish  a  trust,  as  in  England.^ 

1  Pratt  V.  Ayer,  2  Chand.  265.  ^  i  R.  S.  762,  §  38. 

^  Corse  V.  Leggett,  25  Barb.  394. 

*  Stat.  29  Car.  11.  c.  3,  §  7;  Forster  v.  Hale,  3  Ves.  Jr.  696. 
^  The  act  of  1860  now  makes  the  statute  of  New  York  conform  in 
words  to  the  statutes  of  the  other  States.     Cook  v.  Barr,  44  N.  Y.  158. 

6  Wright  V.  Douglass,  3  Seld.  569 ;   Cook  v.  Barr,  44  N.  Y.  158. 

7  Sheet's  Estate,  52  Penn.  St.  527  ;   Blodgett  v.  Hildreth,  103  Mass. 

(a)  See  McDermith  v.  Voorhees,  16  Col.  402 ;  Neill  v.  Keese  (Texas),  51 
Am.  Dec.  746,  757. 

72 


CIIAI'.    III.]  STATUTE    OF   FRAUDS.  [§  82. 

§  82.  There  is  no  purticulur  foriualily  required  or  necessary 
in  the  creation  of  a  trust. ^  All  that  is  required  is  written 
evidence  supplying  every  essential  detail  of  the  trust.'-^  In 
New  York,  a  trust  is  valid  if  the  intention  is  clear  to  create 
a  trust  to  accomplish  one  of  the  purposes  named  in  the 
statute,^  whether  it  is  stated  in  the  precise  words  of  the 
statute  or  not.*  But  trusts  not  authorized  by  the  statute 
are  void.^  A  scaled  paper,  delivered  with  the  deed  and 
mentioned  in  the  deed  as  part  of  it,  is  a  part  of  it,  even 
thouLdi  the  instructions  were  that  the  sealed  document 
should  not  be  oi)ened  until  after  the  death  of  the  grantor.^ 
Any  agreement  or  contract  in  writing,  made  by  a  person 
having  the  power  of  disposal  over  i)roperty,  whereby  such 
person  agrees  or  directs  that  a  particular  parcel  of  property 
or  a  certain  fund  shall  be  held  or  dealt  with  in  a  particular 
manner  for  the  benefit  of  another,  in  a  court  of  equity  raises 
a  trust  in  favor  of  such  other  person  against  the  person 
making  such  agreement,  or  any  other  person  claiming  under 
him  voluntarily  or  with  notice  ;'^  (a)  and  the  statute  of  frauds 

486.  !Mr.  Browne,  in  his  able  treatise  upon  the  Statute  of  Frauds,  cites 
the  case  of  Jaques  v.  Hall,  where  the  Supreme  Judicial  Court  of  Massa- 
chusetts, notwithstanding  the  words  of  the  Massachusetts  statute,  con- 
sidered an  entry  in  a  private  memorandum  book  of  the  trustee,  setting 
fortli  clearly  a  previous  transaction  by  which  he  had  become  trustee,  as  a 
satisfactory  declaration  of  trust.  There  was  other  evidence;  and,  as  the 
case  is  not  put  upon  this  ground,  in  the  printed  report,  3  Gray,  194,  the 
court  probably  chose  to  rest  the  decision  upon  other  grounds.  In  Titcomb 
V.  Morrill,  10  Allen,  15,  Mr.  Justice  Chapnum  said  it  was  not  nece.ssary  to 
decide  the  question.     See  Browne  on  Statute  of  Frauds,  §  104,  1st  ed. 

1  Tyler  v.  Tyler,  25  Brad.  (111.)  339,  quoting  the  text.     In  a  will  it  is 
sufficient  if  the  intent  is  clear.     Quinn  v.  Shields,  62  Iowa,  129. 

2  Dyer's  App.,  107  Penn.  St.  446. 
8  1  R.  S.  728,  §  .55. 

*  Morse  v.  Morse,  85  N.  Y.  53. 

'i  Syracuse  S.  Bank  v.  Porter,  36  Ilun,  168;  Follett  p.  Badeau,  26  id. 
253. 

8  Van  Cott  V.  Prentice,  35  Hun,  322. 

'  See  §  122  and  cases  cited;  2  Spence,  Eq.  860;  Legard  v.  Hodges, 

(a)  Cai-ter  v.   Gibson,    29    Neb.     Ga.  528,  535;  Smith's  Estate,  144 
324 ;    McCreary   v.    Gewinner,   103    Penn.  St.  428. 

73 


§  82.]  EXPRESS   TRUSTS,    ETC.  [CHAP.    III. 

will  be  satisfied  if  the  trust  can  be  manifested  or  proved  by 
any  subsequent  acknowledgment  by  the  trustee,  as  by  an 
express  declaration/  or  any  memorandum  to  that  eliect,''^  or 
by  a  letter  under  his  hand,"^  or  by  his  answer  in  chancery,* 

1  Ves.  Jr.  478;  Baylies  v.  Peyton,  5  Allen,  488;  Taylor  v.  Pownal,  10 
Leigh,  183;  Currie  v.  White,  45  N.  Y.  822;  Pingre  c.  Coffin,  12  Gray, 
28«;  Cressman's  App.,  42  Peun.  St.  147;  Reed  u.  Lukeus,  44  id.  200; 
Conway  v.  Keuswortliy,  21  Ark.  9;  Kuiiun  v.  Raliun,  15  La.  Au.  471  ; 
Kees  V.  Livingston,  41  Peun.  !St.  113;  Paul  v.  Fulton,  32  Miss.  llU;  Sey- 
mour V.  Freer,  8  Wall.  202 ;  Price  v.  Reeves,  38  Cal.  457  ;  Waddingham 
V.  Loker,  44  Mo.  132;  Giddiugs  v.  Palmer,  107  Mass.  270;  Homer  v.  Ilumer, 
107  id.  82 ;  Price  v.  Minot,  107  id.  61.  But  see  Kelley  v.  Bubcock,  49 
N.  Y.  32;  Ogden  v.  Larrabee,  57  111.  389;  Lake  v.  Freer,  11  Brad.  (111.) 
576 ;  Freer  v.  Lake,  115  111.  062 ;  Jones  v.  Lloyd,  117  id.  597  ;  Ticlienell 
V.  Jackson,  26  W.  Va.  460;  Whitcomb  v.  Cardell,  45  Vt.  24;  Pinson  v. 
McGehee,  44  JNliss.  229;  Conway  v.  Cutting,  51  N.  H.  408;  Jones  v.  Wilson, 
60  Ala.  332.  An  agreement  to  support  the  grantor  as  a  substantial  part 
of  the  consideration  of  the  conveyance  creates  a  secret  trust  void  against 
existing  creditors  not  otherwise  having  a  sufficient  remedy.  Funk  v. 
Lawson,  12  Brad.  (111.)  229. 

1  Lewin  on  Trusts,  62;  Ambrose  v.  Ambrose,  1  P.  Wms.  321;  Crop  v. 
Norton,  10  Mod.  233;  Willard  v.  Willard,  56  Penn.  St.  119;  Knox  v. 
McFarren,  4  Col.  586;  Phillips  v.  South  Park  Com'rs,  119  111.  640, 
quoting  the  text. 

2  Bellamy  v.  Bm-row,  Cas.  tem  Talb.  97;  Fisher  v.  Fields,  10  Johns. 
495  ;  Urann  v.  Coates,  109  Mass.  581  ;  Brooke's  App.,  109  Penn.  .St. 
188. 

s  Johnson  v.  Deloney,  35  Tex.  42  ;  Phelps  v.  Seeley,  22  Grat.  573  ; 
Montague  v.  Hayes,  10  Gray,  609;  Kingsbury  v.  Burnside,  58  111.310; 
Forster  v.  Hale,  3  Ves.  Jr.  696 ;  5  Ves.  308 ;  Morton  v.  Tewart,  2  Yo.  & 
Col.  Ch.  67;  Bentley  v.  Mackay,  15  Beav.  12;  Childers  v.  Childers,  1  De 
G.  &  J.  482:  Smith  v.  Wilkinson,  3  Ves.  705;  O'Hara  v.  O'Xeill,  7  Bro. 
P.  C.  227;  Gardner  v.  Rowe,  2  S.  &  S.  346  ;  Crook  v.  Brooking,  2  Vern. 
106;  Steere  v.  Steere,  5  Johns.  Ch.  1.  But  this  case  was  before  the 
statute.  It  is  not  necessary  that  the  trust  and  its  terms  should  be  found 
in  one  letter;  it  is  s'nfficient  if  they  appear  from  any  number  of  letters  or 
writings.  iVIcCandless  v.  Warner,  26  W.  Va.  754  ;  Loring  v.  Palmer,  118 
U.  S.  321,  construing  Michigan  law. 

4  Hampton  v.  Spencer,  2  Vern.  288;  Nab  r.  Nab,  10  Mod.  404  ;  1  Eq. 
Cas.  Ab.  464;  Gil.  Eq.  146;  Cottington  v.  Fletcher,  2  Atk.  1.55;  Ryall  r. 
Ryall,  1  Atk.  59;  Wilson  v.  Dent,  3  Sim.  385;  Butler  r.  Portarlington, 
1  Conn.  &  Laws.  1  ;  1  Dr.  &  W.  20 ;  McCubbin  v.  Cromwell,  7  Gill  &  J. 
175 ;  JoHPS  I'.  Slubey,  5  Har.  &  S.  372. 

74 


CILVr.    III.]  STATUTE    OF   FRAUDS.  [§  82. 

or  by  bis  allidavit,^  or  by  a  recital  in  a  bond  '^  or  dced,^  or  by 
a  pamplilet*  written  by  the  trustees,  or  by  an  entry  in  a  bank- 
deposit  book  ;^  in  short,  by  any  writing  in  which  the  fiduciary 
relation  between  the  parties  and  its  terms  can  be  clearly 
read.°  (a)  And  if  there  is  any  competent  written  evidence 
that  the  person  holding  the  legal  title  is  unly  a  trusti-e,  that 
will  open  the  door  for  the  admission  of  parol  evidence  to 
exi)lain  the  position  of  the  parties.^  as  where  there  are 
entries  in  the  books  of  the  grantee  of  payments  made  by 
him  to  or  on  account  of  the  grantor,  which  payments  were 
consistent  only  with  the  fact  that  the  grantee  took  in  trust, 
he  was  decreed  to  be  a  trustee.^  (b)     Nor  is  it  necessary  that 

^Barkworth  v.  Young,  4  Drew.  1 ;  Piuney  v.  Fellows,  1.5  Vt.  525. 

2  Moorcroft  v.  Dowding,  2  P.  Wms.  314;  Wright  v.  Douglass,  3  Seld. 
564 ;   Gomez  t-.  Traders'  Bank,  4  Saudf.  102. 

3  Deg  V.  Deg,  2  P.  Wms.  412;  Selden's  App.,  31  Conn.  548;  Wright 
V.  Douglass,  3  Seld.  564,  reversing  s.  c.  10  Barb.  97. 

4  Barren  v.  Joy,  16  Mass   221. 
^  Barker  v.  Frye,  75  Maine,  29. 

8  Baylies  v.  Payson,  5  Allen,  473;  Plymouth  v.  Hickman,  2  Vern.  167; 
Blake  v.  Blake,  2  Bro.  P.  C.  250;  Dale  v.  Hamilton,  2  Phill.  2G0;  Orleans 
V.  Chatham,  2  Pick.  29;  Hardin  v.  Baird,  6  Litt.  346;  Graham  v.  Lam- 
bert, 5  Humph.  595;  Gome  v.  Tradesman's  Bank,  4  Sand.  106;  Bragg  v. 
Paulk,  42  Maine,  502;  Unitarian  Society  v.  Woodbury,  14  id.  281  ;  Mc- 
Cubbin  v.  Cromwell,  7  Gill  &  J.  157;  Podmore  v.  Gunning,  7  Sim.  655; 
Fisher  v.  Fields,  10  Johns.  Ch.  505;  Murray  v.  Glass,  23  L.  J.  Ch.  126; 
Paterson  v.  Murphy,  17  Jur.  298;  Raybold  v.  Raybold,  20  Penn.  St.  308; 
Barron  v.  Barron,  24  Vt.  375;  Steere  v.  Steere,  5  id.  1  ;  Cuyler  v.  Bradt, 
Caines'  Cas.  326 ;  Packard  v.  Putnam,  57  N.  H.  43. 

7  Cripps  V.  Lee,  4  Bro.  Ch.  472;  Hollinshed  w.  Allen,  17  Penn.  St.  275; 
Prevost  V.  Gratz,  1  Pet.  C.  C.  366;  Morton  v.  Tewart,  2  Yo.  &  Coll.  Ch. 
67-77 ;  Ilutchins  u.  Lee,  1  Atk.  447  ;  Corse  v.  Leggett,  25  Barb.  389.  But 
see  Horner  c.  Homer,  107  Mass.  82. 

8  Ibid. 

(a)  See  Patten  v.  Chamberlain,  chase-money,  and   delivery  of  pos- 

44  Mich.  5;  Eippery.  Beimer,  113  id.  session  of  one  of  several  parcels  of 

75;  Larrabee  v.  Hascall,  88  Maine,  land  included  in  a  parol  contract  of 

511;  Hutchins  v.  Van  Vechten,  140  sale,  enable  the  purchaser  to  enforce 

N.   Y.    115;    Tusch   v.    German  S.  specific   performance  as  to  all   the 

Bank,  46  N.  X.  S.  422  ;  Cathcart  v.  parcels,  and  the  vendor  is  a  trustee 

Nelson,  70  Vt.  317.  to  the  extent  of  the  money  paid. 

(i)  So  part  payment  of  the  pur-  Bartz  v.  Paff,  95  Wis.  95,  90,  100. 

75 


§  82.]  EXPRESS   TRUSTS,    ETC.  [CHAP.    III. 

the  letters,  memoranda,  or  recitals  should  be  addressed  to 
the  cebtui  que  trust,  or  should  have  been  intended  when  made 
to  be  evidence  of  the  trust.  ^  A  deed  of  gift  to  the  husband, 
as  "an  advancement"  to  the  wife,  will  create  a  trust  for  the 
wife.  It  is  not  necessary  that  the  word  "  trust "  or  "  trustee  " 
should  be  used,^  (a)  The  trust  thus  proved,  however  late 
the  proof,  will  relate  back  to  its  creation ;  as  where  a  lease 
was  granted  to  A.,  who  afterwards  became  a  bankru[)t,  and 
theti  executed  a  declaration  of  trust  in  favor  of  B.,  the  jury 
having  found  upon  an  issue  out  of  chancery  that  A.  's  name 

1  Forster  v.  Hale,  5  Ves.  308;  Hutchinson  v.  Tindall,  2  Green,  Ch.  357-, 
Barrel!  v.  Joy,  16  Mass.  221  ;  Welford  v.  Beazeley,  3  Atk.  503 ;  Browne  on 
Statute  of  Frauds,  §  99 ;  Furman  v.  Fisher,  4  Cold.  626 ;  Urann  v.  Coates, 
109  IMass.  581.  In  Steere  v.  Steere,  5  Johns.  Ch.  1,  Mr.  Chancellor  Kent 
recognized  and  approved  the  general  proposition  that  trusts  could  be 
proved  by  letters  signed  by  the  party ;  but  in  showing  that  the  letters  in 
that  particular  case  were  insufficient  to  prove  a  trust,  he  took  notice  of  the 
fact  that  they  were  not  addressed  to  the  cestui  que  trust,  and  seemed  to  in- 
timate that  it  was  necessary  that  letters  should  be  so  addressed  in  order  to 
manifest  the  trust.  If  the  eminent  chancellor  intended  to  lay  down  such 
a  rule,  it  would  seem  to  be  effectually  overthrown  by  the  well-considered 
cases  cited  above. 

2  Cresswell's  Adm'r  v.  Jones,  68  Ala.  420. 

See  Miller  v.  Sharp,  47  W.  R.  268.  Berkshire,  175  HI.  243;  2  Harv.  L. 

In  general,  the  making  of  improve-  Rev.  28.     It  is  only  in  equity,  and 

ments  on  another's   land   does  not  not  at  law,  that  part  performance 

create  a   resulting  trust.     Bodwell  can  take  a  case  out  of  the  operation 

V.  Nutter,  63  N.  H.  446.     See  Gold-  of  the  statute  of  frauds.      Chicago 

smith  V.  Goldsmith,  145  N.  Y.  313;  Att.  Co.  v.  Davis  S.  M.  Co.,  142  111. 

Fillsbury— Washburn  F.  M.  Co.  v.  171;   Cooper  v.  Thomason,  30  Ore- 

Kistler,  .53  Minn.  123;  Frick  Co.  v.  gon,  IGl;  Wittenbrock  v.  Cass,  110 

Taylor,    94    Ga.    683;    Tolleson   v.  Cal.  1. 

Blackstock,    95    Ala.    510;     Smith  (a)  Packard  v.  O.  C.  R.  Co.,  168 

V.    Jeffreys    (Miss.),    16    So.    377.  Mass.  92;    Chadwick  v.  Chadwick, 

Improvements,  if  they  can  ever  be  59  Mich.  87  ;  infra,  §  225,  n.    When 

relied   upon  as  a  partial   perform-  no  trust  is  declared  or  beneficiary 

ance,   must   be  substantial,   perma-  named,  and  the  conveyance  is  for  a 

nent,   and   made   in  reliance  upon  valuable    consideration,    the    word 

the   contract.      Cooley  v.   Lobdell,  "trustees"    used    therein    is    sur- 

153    N.    Y.    596,    602;    Krauth   v.  plusage,  and  does  not  show  a  trust. 

Tbiele,  45  N.  J.  Eq.  407;  Duvale  Andrews  v.  Atlanta  R.  E.  Co.,  92 

V.   Duvale,    54   id.    581 ;    Dunn   v.  Ga.  260. 

7Q 


CHAl'.    III.]  STATUTE   OF  FRAUDS.  [§  82. 

was  used  in  good  faith  in  the  lease  as  the  trustee  of  D. ,  it 
was  held  that  the  assignees  of  A.  took  nothing  in  the 
property.^  But  it  must  clearly  ajjpear  that  the  jjarties 
intended  a  trust  l>y  the  transaction,  and  parol  evidence  is 
competent  to  explain  .receipts  and  other  papers  connected 
with  the  case  which  may  Ijc  exjdaiued  hy  parol  in  other 
cases.-  A  mere  declaration  of  inutive,  as  a  grant  to  A.  in 
order  that  he  may  maintain  his  children,  will  not  create  a 
trust  ;^  nor  will  a  mere  request  of  an  owner  to  his  heirs  to 
convey  land  to  a  person  named  in  the  letter  expressing  his 
wish.*  In  case  of  a  deposit  in  hank  in  trust  for  another 
there  must  be  an  intent  to  pass  the  beneficial  interest  during 
the  life  of  the  donor,  and  not  merely  a  testamentary  intent 
that  the  person  named  as  cestui  shall  have  the  money  at  the 
decease  of  the  donor,  who  retains  complete  control  of  the 
fund  during  his  life.^  The  general  rule  is  that  a  deposit  of 
money  in  the  name  of  the  depositor,  in  trust  for  another, 
transfers  the  title  to  the  latter.*'  Where  a  savings-bank 
depositor  "in  trust"  kept  the  book,  but  before  his  death  told 
the  beneficiary  in  substance,  "  That  money  I  put  in  the  sav- 
ings bank  for  you,  is  yours,"  a  finding  that  there  was  a  per- 
fected gift  was  justified."    The  question  is,  Do  the  facts  show 

1  Gardner  r.  Howe,  2  S.  &  S.  346;  5  Russ.  2.",8;  Plymouth  v.  Hickman, 
2  Verii.  167  ;  Ambrose  v.  Ambrose,  1  P.  Wms.  322;  Wilson  r.  Dent.  3  Sim. 
385;  Smith  v.  Howell,  3  Stockt.  349;  Ownes  r.  Ownes,  23  X.  J.  Ch.  60; 
McGovern  i'.  Knox,  21  Ohio  St.  547  ;  Malin  v.  Malin,  1  Wend.  625;  Steere 
V.  Steere,  5  Johns.  Ch.  1 ;  Jackson  v.  Moore,  6  Cow.  706  ;  Reid  v.  Fitch,  11 
Barb.  399;  Reggs  v.  Swann,  6  Jones,  Eq.  115  ;  Noble  r.  Morris,  24  Ind. 
478;  Sime  r.  Howard,  4  Xev.  473;  Reid  v.  Reid,  12  Rich.  Eq.  213;  Mc- 
Laurie  v.  Partlow,  53  111.  340. 

2  Smith  V.  Tome,  59  Pfnn.  St.  158;  Hays  v.  Quay,  id.  263. 
«  Bryan  v.  Howland,  9S  111.  625. 

*  Preston  t-.  Casner,  104  111.  262. 

^  Nutt  V.  Morse,  142  Mass.  1, 3  ;  Waynesburg  College's  App.,  Ill  Penn. 
St.  1.30;  Smith  r.  Speer,  34  X.  J.  Eq.  336. 

•  Scott  V.  Harberk,  49  Hun,  202. 

''  AlLjer  v.  North  End  Savings  Bank,  146  Mass.  418.  See  Mabie  v. 
Bailey,  95  N.  Y.  206,  and  Boone  v.  Citizens  Bank,  84  N.  Y.  83.  At  the 
death  of  the  trustee  the  trust  goes  to  her  executor  or  administrator,  and 
in  the  absence  of  notice  from  the  beneficiary  to  the  contrary,  he  may  pay 
the  money  to  said  representative. 

77 


82.] 


EXPRESS   TKUSTS,   ETC. 


[CHAr.   III. 


an  intent  to  create  a  present  trust  ?  And  the  facts  that  the 
grantor  drew  interest  on  the  deposit,  or  offered  to  loan  the 
money  after  the  deposit  was  made,  are  not  conclusive  against 
a  trust.  ^  But  where  A.  deposits  money  in  the  name  of  B., 
"sub.  to  A.,"  and  A.  receives  the  dividends  and  keeps  the 
pass-book  and  draws  such  portions  of  the  principal  for  her 
own  use  as  she  chooses,  there  is  no  gift  to  nor  trust  for  B. 
If  there  is  any  trust,  it  is  B.  who  is  trustee  for  A.^  (a) 

1  Willis  V.  Smyth,  91  N.  Y.  297. 

2  Xorthrop  v.  Hale,  73  Maine,  71.  See  Marcy  v.  Amazeen,  61  X.  H. 
131,  retaining  control  and  giving  cestui  no  notice,  no  trust;  and  Bartlett 
V.  Remington,  59  N.  H.  364,  a  similar  case,  an  executory  trust  without 
consideration,  is  not  enforceable ;  and  Pope  v.  Burlington  Savings  Bank, 
57  N.  Y.  126,  where  the  cestui  had  no  knowledge  of  the  deposit,  and  the 
depositor  withdrew  part  of  the  fund. 


(a)  Depositing     money     in     a 
savings    bank    in    another's   name 
is  not  conclusive  evidence  of  a  gift. 
Booth  V.  Bristol   County  S.  Bank, 
162  Mass.  455 ;  Bath  Savings  Inst'n 
V.  Hathorn,  88  Maine,  122;  Cooney 
V.  Ryter,  46  La.  An.  883.     A  bank 
deposit  in  another's  name,  and  with 
his  knowledge  and  assent,  may  be  a 
valid   gift,  though  the  donee  is  to 
hold  it  in  trust  during  the  donor's 
life;  if  made  for  the  donor's  child, 
such   deposit   is   treated   as   a  gift 
rather  than  an  advancement.  Beaver 
V.  Beaver,  117  X.  Y.  421;  Cunning- 
ham V.  Davenport,  147  N.  Y.  43; 
Conn.  River  S.  Bank  v.  Albee,  64 
Vt.  571;  Providence  Inst'n  v.  Car- 
penter, 18  R.  I.  287 ;  Miller  v.  Clark, 
40  F.  R.  15 ;  McDonald  v.  Donald- 
son, 47  id.  765;  Telford  v.  Patton, 
144  111.  611 ;  Re  Atkinson,  16  R.  I. 
413;  Patterson's  Appeal,  128  Penn. 
St.  269;   Williamson  v.   Yager,  91 
Ky.    184 ;    Dunlap    v.    Dunlap,    94 
Mich.  11;  Crook  r.  First  Nat.  Bank, 
83  Wis.  31 ;  White  v.  White,  52  Ark. 
78 


188.  A  deposit  by  A.  for  "A.  or 
B."  does  not  necessarily  show  that' 
B.  has  an  interest  as  donee,  as  such 
a  deposit  may  be  merely  matter  of 
convenience,  hire  Bolin,  136  N.  Y. 
177;  see  Ide  v.  Pierce,  134  Mass.  260. 
To  constitute  a  gift  in  such  case 
there  must  be  a  transfer  of  the 
fund,  or  at  least  a  transfer  of  it  to 
the  depositor  as  trustee  for  the 
donee,  with  the  latter's  knowledge 
and  acceptance.  Sherman  v.  New 
Bedford  S.  Bank,  138  Mass.  581; 
Scott  V.  Berkshire  County  S.  Bank, 
140  id.  157;  Alger  v.  North  End  S. 
Bank,  146  id.  418;  Noyes  v.  New- 
buryport  S.  Inst'n,  164  id.  583; 
Cogswell  V.  Newburyport  S.  Inst'n, 
165  id.  .524;  Henchey  v.  Henchey, 
167  id.  77 ;  Keniston  ^^  Mayhew, 
169  id.  166;  Norway  S.  Bank  v. 
Merriam,  88  Maine,  146;  Fairfield 
S.  Bank  v.  Small,  90  id.  546;  Lee 
V.  Kennedy,  54  N.  Y.  S.  155;  Jones 
V.  Moore  (Ky.),  44  S.  W.  126;  Booth 
V.  Oakland  S.  Bank  (Cal.),  54  Pac. 
370.     When  one  seeks  by  a  bill  in 


CHAP.    III.]  STATUTE   OF  FRAUDS.  [§  83. 

§  83.  The  same  principles  of  construction  apply  to  trusts 
proved  by  this  description  of  evidence  as  in  other  cases ;  and 
the  objects  and  nature  of  the  tru.st  must  always  appear  from 
such  writings  with  sufiicient  certainty,  and  also  their  con- 
nection with  the  subject-matter  of  the  trust.  ^  Indeed,  courts 
require  demonstration  on  the  latter  point;  and  the  trust  will 
not  be  executed  if  the  precise  nature  of  it,  and  the  particular 
persons  who  are  to  take  as  cestuis  que  trust,  and  the  propor- 
tions in  which  they  are  to  take,  cannot  be  ascertained. ^ 
When  all  these  particulars  properly  appear  from  writings 
signed  by  the  party,  the  trust  will  be  executed ;  but  if  the 
terms  of  the  trust  are  collected  from  several  papers,  it  is 
not  necessary  that  all  of  them  should  be  signed,  provided 
they  arc  so  referred  to  and  connected  with  the  paper  that  is 
signed  that  they  may  be  identified  and  read  as  genuine 
papers,  and  a  part  of  the  transaction.^  (a)     Nor  need  there 

^  Forster  v.  Hale,  3  Ves.  Jr.  70S ;  Steere  v.  Steere,  5  Johns.  Ch.  1  ; 
Abel  I'.  Radcliff,  13  Johns.  297;  Kutledge  v.  Smith,  1  McC.  Ch.  119; 
Freeport  r.  Bartol,  3  Greenl.  340;  Arms  v.  Ashley,  4  Pick.  71;  Hill  oa 
Trustees,  Gl. 

2  Ibid. ;  Smith  v.  Mathews,  3  De  G.,  F.  &  J.  139  ;  Morton  v.  Tewart, 
2  Yd.  &  Col.  Ch.  80;  Lewin  on  Trusts,  4'j;  Leman  v.  Whitloy,  4  Russ. 
423 ;  Whelan  v.  Whelan,  3  Cow.  537 ;  Jackson  v.  Moore,  id.  700 ;  Reid  v. 
Fitch,  11  Barb.  399;  Jones  v.  Wilson,  6  Ala.  332;  Taylor  v.  Keep,  2  Brad. 
(111.)  368. 

*  Ibid.;  Denton  r.  Davis,  18  Ves.  503 ;  Lewin  on  Trusts,  47  ;  Browne 
on  the  Statute  of  Frauds,  §§  105,  350-355. 

equity  to  establish  a  trust  in  a  de-  terms  of  the  trust,  or  at  least  suffi- 

posit  in  a  bank,  and  to  set  up  a  title  cient  to  identify  the  subject-matter 

adverse  to  the  depositor,  the  deposi-  by  writing,  and  when  it  is  contained 

tor  is  a  necessary  party  to  the  suit  :  in  separate   papers,  these  must  be 

Gregory    v.     Merchants'     National  identified  and  connected  by  internal 

Bank,  171  Ma.ss.  G7;  but  the  bank  is  reference.      Re  Smith;    Champ  v. 

not.      Oppenheimer   v.    First   Nat.  Mar.shallsay.  64  L.  T.  13;  Knowlton 

Bank,  20  Mont.  192.  v.  Atkins,  134  N.  Y.  313;  Hamer  v. 

As  to  gifts  of  insurance  policies,  Sidway,  124  N.  Y.  538;  Hannig  r. 

choses  in  action,  etc.,  see  1  Ames  Mueller,    82    Wis.    235;     Atwater 

on  Trusts  (2d  ed.),   139,  145,  1.35,  v.  Russell,  40  Minn.  57;  Yerkes  t-. 

163.  Perrin,  71  Mich.  567;  Renz  v.  Stoll, 

(a)  The  written    declaration   of  94  id.  377;    Eipper  v.   Benner,  113 

trust  must  contain  the  substantial  id.    75 ;     McAuley's    Estate,    184 


9 


§  83.]  EXPRESS   TRUSTS,   ETC.  [CHAP.   III. 

be  an  actual  subscription  of  the  party's  name,  if  the  paper 
is  authenticated  by  the  party  as  his  writing  for  the  purpose 
of  declaring  the  trust  by  writing  his  initials.^  The  party 
whose  signature  is  essential  is  the  party  who  by  law  is 
enabled  to  declare  the  trust;  and  it  has  been  decided,  that, 
whether  the  property  is  real  or  personal,  the  party  enabled 
to  declare  the  trust  is  the  owner  of  the  beneficial  interest, 
who  has  therefore  the  absolute  control  over  the  property,  the 
holder  of  the  legal  estate  being  a  mere  instrument  or  conduit 
pipe  for  him. 2  But  if  there  is  an  absolute  conveyance  of  the 
legal  title  to  a  supposed  trustee,  and  there  is  no  declaration 
of  a  trust  prior  to  or  at  the  time  of  the  conveyance  by  the 
grantor,  and  the  cestui  que  trust  attempts  to  charge  the 
grantee  with  a  trust  in  respect  to  the  land,  he  must  produce 
some  writing  signed  by  the  grantee  of  the  legal  title  in 
order  to  charge  him  with  the  trust.^(a)     It  is  only  when 

1  Smith  V.  Howell,  3  Stockt.  349. 

2  Tierney  v.  Wood,  19  Beav.  330;  Donaboe  v.  Conrahy,  2  Jon.  &  La. 
688 ;  Lewin  on  Trusts,  47. 

3  Browne  on  Statute  of  Frauds,  §  106;  Adlington  v.  Cann,  3  Atk.  145; 
Wallgrave  v.  Tebbs,  2  K.  &  J.  313;  Lee  v.  Ferris,  ib.  357;  Ptussell  v. 
Jackson,  10  Hare,  204;  Lomax  v.  Ripley,  3  Sm.  &  Gif.  48;  Brown  v. 
Brown,  12  ]\Id.  87;  Tritt  v.  Crotzer,  13  Penn.  St.  451;  In  re  Dunbar,  2 
Jon.  &  La.  120. 

Penn.     St.    75 ;     Heidenheimer    v.  An    unsealed   declaration   of    trust 

Bauman,  84  Texas,  174.     The  in-  must  be  supported  by  a  considera- 

validity   of    some    provisions   in   a  tion,  must  upon  its  face  be  intended 

declaration  of  trust  does  not  avoid  to  create  a  trust,  and  clearly  indicate 

it  wholly,  when  the  unobjectionable  the  beneficiary.     Finley  v.  Isett,  154 

clauses    are   separable  from   them.  U.  S.  561 ;  Emerson  v.  Galloupe,  158 

Culross  V.  Gibbons,  130  N.  Y.  447;  Mass.  146;  Leslie  t;.  Leslie,  53  N.  J. 

Re  Butterfield,  133  N.  Y.  473;  Kelly  Eq.  275;  Hart  v.  Seymour,  147  111. 

V.  Nichols,  17  R.  T.  .306;  18  R.  I.  62.  598;  Hamilton  v.  Downer,  152  id. 

(a)  A  declaration  of  trust  which  651;  Carter  v.  Gibson,  29  Neb.  324; 

is  signed   only  by  the  trustee  does  Leeper    v.    Taylor,    111    Mo.    312; 

not,  by  its  covenants,  and   the  ac-  Locke  v.  Farmers'  L.  &  T.  Co.,  140 

ceptance  of  the  declaration  by  the  N.  Y.  135;  Wilcox  v.  Gilchrist,  85 

beneficiaries,  limit   their  equitable  Hun,    1 ;    Hamer    v.    Sidway,    124 

estates  under  the  statute  of  frauds.  N.  Y.  538;    57  Hun,  229,  236. 
Adams  v.  Carey,  53  N.  J.  Eq.  334. 
80 


CHAP.   III.]  ANSWERS   IN   CHANCERY.  [§  84. 

there  is  no  dispute  concerning  the  existence  of  a  trust,  or 
when  the  trust  arises  hy  ojicration  of  law  as  a  resulting  or 
implied  trust,  that  the  cestui  que  trust  himself  can  declare 
its  terms.  ^ 

§  84.  It  remains  to  consider  when  and  how  far  trusts  may 
be  declared  or  proved  by  the  answers  of  parties  in  chancery. 
It  has  been  decided  that  a  defendant  is  bound  to  answer  to  a 
bill  suggesting  a  parol  trust,  and  that  a  general  demurrer  ^ 
would  be  overruled;  but  perhaps  this  doctrine  is  confined  to 
parol  trusts  that  arise  from  fraud,  accident,  or  mistake ;  for 
in  the  case  of  express  trusts,  if  it  can  be  gathered  from  the 
bill  that  the  plaintiff  relies  upon  parol  evidence  alone,  with 
no  circumstances  to  take  it  out  of  the  statute,  it  has  been 
held  that  the  defendant  may  demur. ^  But  the  general  rule 
is  that  if  a  trust  is  alleged  in  a  1)ill  it  will  be  presumed 
to  be  legally  created,  i.  e.,  in  writing,  unless  the  contrary 
appears ;  therefore  it  must  clearly  appear  from  the  bill  that 
the  alleged  trust  rests  in  parol  only,  or  the  demurrer  will  be 
overruled.*  It  has  also  been  decided,  that  if  the  bill  simply 
omits  to  state  that  the  trust  is  in  writing,  a  demurrer  will 
be  overruled;  for,  as  the  statute  only  requires  that  it  should 
be  proved,  not  created,  by  writing,  the  writing  is  no  part  of 
the  trust,  but  only  evidence  of  the  trust  to  be  adduced  at 
the  hearing.^  In  all  cases,  however,  the  defendant  mai/ 
answer,  and  if  in  his  answer  he  confess  the  trust  without 
insisting  upon  the  statute  of  frauds,  he  will  be  held  to  have 

1  Rellasis  v.  Compton,  2  Vem.  294;  Lee  v.  Huntoon,  1  Iloff.  Ch.  447; 
Harris  v.  Barnet,  3  Grat.  339;  and  cases  in  preceding  note. 

2  IMuckleston  r.  Brown,  6  Ves.  52;  Stickland  v.  Aldridge,  9  Ves.  516; 
Chamberlain  v.  Agar,  2  V.  &  B.  259;  Newton  v.  Pelhara,  1  Ed.  514; 
Lomax  v.  Ripley,  3  Sm.  &  Gif.  48;  Peralta  v.  Castro.  G  Cal.  354  ;  Cot- 
tington  V.  Fletcher,  2  Atk.  155;  Childers  v.  Childers,  3  K.  &  J.  310;  1  De 
G.  &  J.  485. 

3  Walker  v.  Locke,  5  Cush.  01;  Wood  v.  Midgeley,  27  Eng.  L.  &  Eq. 
206;  5  De  G.,  M.  &  G.  41 ;  Ridgway  v.  Wharton,  3  id.  677;  Barkworth  c. 
Young,  4  Dr.  1.     See  Skinner  v.  McDonall,  2  De  G.  &  Sm.  265. 

•»  Cozine  v.  Graham,  2  Paige,  177. 
6  Davis  r.  Otty,  33  Beav.  540. 
VOL.  I.  —6  81 


§  85.]  EXPRESS   TRUSTS,    ETC.  [CHAP.    III. 

waived  the  benefit  of  the  statute,  and  his  answer  may  be 
used  as  a  written  declaration  and  proof  of  the  trust, ^  on  the 
ground  that  the  plaintiff  is  not  called  upon  to  introduce 
evidence,  and  the  trust  appears  upon  the  written  answer 
before  the  court,  (a) 

§  85.  Resulting  and  implied  trusts  that  arise  from  fraud 
can  be  proved  by  parol,  although  the  defendant  in  his  answer 
denies  the  trusts  and  sets  up  the  statute  in  bar;  for  such 
trusts  are  not  within  the  statute.  In  cases  of  express  trusts, 
if  the  defendant  denies  them,  or  if  he  denies  them  and  at 
the  same  time  sets  up  the  statute,  or  if  he  do  not  answer  at 
all,  only  legal  evidence  or  evidence  in  writing  can  be  given 
in  proof. ^    And  if  the  defendant  confesses  the  parol  trusts 

1  Hampton  v.  Spencer,  2  Vern.  288 ;  Nab  v.  Nab,  10  Mod.  404 ;  1  Eq. 
Cas.  Ab.  404;  Gil.  Eq.  146  ;  Dean  v.  Dean,  1  Stockt.  425;  Whiting  v. 
Gould,  2  Wis.  552;  Woods  v.  Dille,  11  Ohio,  455;  Newton  v.  Swazey, 
8  N.  H.  9  ;  Rowton  v.  Rowton,  1  Hen.  &  Munf.  91 ;  Lingan  v.  Henderson, 

1  Bland.  236 ;  Tarleton  v.  Vietes,  1  Gilm.  470 ;  Stearnes  v.  Hubbard,  8 
Greenl.  320  ;  Thornton  u.  Henry,  2  Scam.  219 ;  School  Trustees  v.  Wright, 
12  111.  432;  McCubbin  v.  Cromwell,  7  Gill  &  J.  157;  Kinzie  v.  Penrose, 

2  Scam.  250;  Talbot  v.  Bowen,  1  A.  K.  Marsh.  436;  Albert  v.  Ware,  2 
Md.  Ch.  169,  6  Md.  Ch.  66;  Chitwood  v.  Brittain,  1  Green,  Ch.  450; 
Baker  v.  Hollabaugh,  12  Ark.  322;  Cozine  v.  Graham,  2  Paige,  177; 
Tilton  V.  Tilton,  9  N.  H.  386;  Switzer  v.  Skiles,  1  Gilm.  529;  Allen  v. 
Chambers,  4  Ired.  Eq.  125;  Hall  v.  Hall,  1  Gill,  383;  McLaurie  v.  Part- 
low,  53  111.  340. 

2  Trapnal  v.  Brown,  19  Ark.  39;  Wynn  v.  Garland,  id.  23;  Smith  v. 
Howell,  Stockt.  349 ;  Whyte  v.  Arthur,  2  Green,  Ch.  521 ;  Broadness  v. 
Woodman,  27  Ohio  St.  353;  Matthews  v.  Denman,  24  id.  615. 

(a)  As  the  character  of  the  trust.  The  statements  of  a  party  who  is 

as  an  express  or  implied  one,  de-  compelled  to  answer,  either  by  an- 

pends  on   the  nature  of  the  facts  swer  in  chancery  or  by  deposition, 

which  brought  it  into  being,  and  will  not  be  treated  as  a  declaration 

not  on  the  manner   in  which   its  of  trust,  when  the  statute  of  frauds 

existence  is  proved  after  its  crea-  is  pleaded  in  bar.     Davis  v.  Stam- 

tion,   the  fact  that  it  is  fully  set  baugh,   163    111.   557;    Mayfield    v. 

forth  by  the  trustee  in  his  answer  Forsyth,    164    id.    32 ;    Myers    v. 

in  chancery,  does  not  change  a  re-  Myers,   167  id.   52. 
suiting  trust  into  an  express  trust. 
Warren  v.  Tynan,  54  N.  J.  Eq.  402. 
82 


CHAP.    III.]  ANSWERS    IN    CHANCERY.  [§  85. 

in  his  answer,  and  at  the  same  time  sets  up  the  statute  in 
Ijar,  he  will  have  the  benefit  of  the  statute,  and  the  court 
will  not  use  the  answer  as  a  written  declaration  and  proof 
of  the  trust. ^  In  one  case  it  was  held  that  a  trust  appearing 
from  defendant's  answer  would  bo  executed  by  the  court 
although  it  was  entirely  different  from  the  trust  alleged  in 
the  bill  ;2  but  this  case  has  not  been  followed.  In  a  late  case 
where  a  bill  was  filed  setting  forth  a  fraud  and  asking  to 
have  a  resulting  trust  declared  and  a  deed  set  aside,  and  the 
defendant  confessed  an  express  trust  by  parol,  and  offered  to 
execute  it.  Chancellor  Vroom  said,  "I  am  inclined  to  believe 
that  if  the  present  complainant  had  filed  a  bill  claiming  this 
deed  to  be  a  deed  of  trust,  and  praying  that  it  might  be  so 
decreed  according  to  the  original  intention  of  the  parties, 
the  answer  of  the  defendant  admitting  the  trust  would  have 
been  good  evidence  of  it.  It  would  have  amounted  to  a 
sufficient  declaration  of  trust.  But  it  would  seem  to  be 
different  when  a  complainant  seeks  on  the  ground  of  fraud 
to  set  aside  a  deed  absolute  on  its  face,  and  confessedly 
without  any  consideration  paid ;  for,  to  suffer  a  defendant  in 

1  Dean  v.  Dean,  1  Stockt.  425;  Whiting  v.  Gould,  2  Wis.  552.  The 
proposition  in  the  test  was  long  a  disputed  poiut.  It  was  apparently  held 
that,  as  the  defendant  by  his  answer  had  admitted  the  trust,  the  plaintiff 
was  not  called  upon  to  introduce  any  evidence.  There  was  no  danger  of 
fraud  and  perjury ;  as  the  court  had  the  defendant's  statement  of  a  trast 
in  writing  under  oath,  and  as  equity  takes  hold  of  a  party's  conscience,  he 
ought  to  be  held  to  execute  the  trust  which  he  confesses,  notwithstanding 
the  statute.  On  the  other  hand,  in  bills  for  the  specific  performance  of 
a  parol  contract  for  the  sale  of  lands,  the  defendant  was  held  not  bound 
to  execute  the  contract  if  he  set  up  the  statute,  although  he  confessed  the 
contract  in  his  answer.  There  would  seem  to  be  no  reason  for  a  different 
rule  in  the  two  cases;  and  since  it  is  now  established  that  a  defendant 
may  demur  to  a  bill  that  on  its  face  alleges  a  mere  parol  trust,  it  would 
seem  to  follow  that  the  confession  of  a  defendant  should  not  be  used  to 
override  a  positive  rule  of  law.  The  two  cases  cited  establish  the  propo- 
sition of  the  text,  and  it  is  presumed  that  the  same  rule  would  be  held  in 
all  the  United  States.  It  is  a  question  of  pleading  and  practice,  and  it  is 
considered  here  only  incidentally  in  considering  how  trusts  may  be  cre- 
ated under  the  statute  of  frauds.  The  reader  will  find  a  full  discussion 
of  the  question  in  Story's  Eq.  Pleading,  §§  765-768. 

2  Hampton  v.  Spencer,  2  Vern.  288. 

83 


§  86.]  EXPKESS  TRUSTS,  ETC.         [CHAP.  III. 

such  case  to  come  in  and  avoid  the  claim  by  setting  up  a 
trust  Avould  be  to  permit  him  to  create  a  trust  according  to 
his  own  views,  and  thereby  prevent  the  consequences  of  a 
fraud.  "^  It  must  be  observed,  that  if  the  answer  of  the 
trustee  is  used  to  prove  the  trust,  the  terms  of  the  trust 
must  be  gathered  from  the  whole  answer  as  it  stands,  for 
one  part  of  the  answer  cannot  be  read  and  another  part 
rejected.  If,  therefore,  the  plaintiff  read  the  answer  in 
proof  of  the  trust,  he  must  at  the  same  time  read  the  par- 
ticular terms  of  the  trust  as  therein  stated.  ^  (a)  In  States 
where  the  statute  of  frauds  is  not  in  force,  trusts  may  be 
proved  by  parol,  in  opposition  to  the  defendant's  answer 
denying  them. 

§  86.  Personal  chattels  are  not  within  the  terms  of  the 
statute,  and  trusts  in  personal  property  may  be  declared  and 
proved  by  parol,  though  Mr.  Eden  said  that  "  he  had  not  been 
able  to  find  an  instance  of  a  declaration  of  trust  of  personal 
property,  evidenced  only  by  parol,  having  been  carried  into 
execution."  ^  And  certainly  the  English  cases  usually  referred 
to  do  not  establish  the  proposition  in  express  terms.^     There 

^  Hutchinson  v.  Tindall,  2  Green,  Ch.  357  ;  and  see  Jones  v.  Slubey, 
5  Harr.  &  J.  372;  McCubbin  v.  Cromwell,  7  Gill  &  J.  157;  Haighw.  Kay, 
L.  R.  7  Ch.  469. 

2  Hampton  v.  Spencer,  2  Vern.  288;  Nab  v.  Nab,  10  Mod.  404;  Free- 
man V.  Tatham,  5  Hare,  329;  Stearnes  v.  Hubbard,  8  Greenl.  320  ;  Lewin 
on  Trusts,  46. 

3  Fordyce  v.  Willis,  3  Bro.  Ch.  (n.). 

*  Nab  r.  Nab,  10  Mod.  404,  1  Eq.  Cas.  Ch.  404,  and  Jones  v.  Nabbe, 
Gil.  Eq.,  are  usually  cited  to  sustain  the  proposition,  but  they  do  not.  In 
Crook  V.  Brooking,  2  Vern.  50,  106 ;  Inchiquin  v.  French,  1  Cox,  1 ;  Met- 
ham  V.  Devon,  1  P.  Wms.  529,  and  Smith  v.  Attersoll,  1  Russ.  274,  there 
were  written  declarations  of  trust,  and  the  question  was  as  to  the  effect  of 
the  writings,  though  it  was  remarked  in  these  cases  that  trusts  of  person- 
alty could  be  evidenced  by  parol.  The  case  of  Benbow  v.  Townsend,  1 
My.  &  K.  506,  was  this:  A.  had  loaned  £2,000,  and  taken  a  mortgage  in 
the  name  of  B.,  his  brother,  declaring  that  he  intended  it  for  the  benefit  of 

(a)  The  answer  must  be  com-    160  111.  56 ;  Waaren  v.  Tynan,  54 
plete  as  a  declaration  of  trust,  and    N.  J.  Eq.  402. 
fully  show  a  trust.     "WTiite  v.  Ross, 
84 


CHAP.    III.]  PERSONAL    PROPERTY.  [§  86. 

does  not  seem  to  be  any  objection,  bowcver,  to  tbc  establish- 
ment of  a  trust  in  personal  property  by  parol.  Tbc  owner  in 
the  absence  of  a  statute  has  entire  control  of  it ;  he  can  sell 
and  transfer  it  without  writing  and  by  parol,  and  if  he  can 
transfer  it  by  parol,  there  is  no  reason  why  he  may  not  by 
parol  transfer  it  upon  such  lawful  terms,  and  to  such  uses  and 
trusts,  as  he  may  desire.  It  has  been  so  ruled  in  express 
decisions  in  the  United  States.^     "When  a  person  sui  juris 

B.  After  the  death  of  A.  his  executor  brought  a  bill  against  B.  to  obtaia 
the  mortgage,  and  the  question  was  whetlier  the  representatives  of  A. 
were  entitled  to  the  mortgage.  It  was  held  that  B.  was  entitled  to  hold 
the  mortgage,  and  it  was  remarked  that  a  trust  of  personal  property  was 
not  within  the  statute  of  frauds.  It  will  be  observed  that  the  mortgage 
was  in  writing  in  the  name  of  B.,  and  that  the  parol  evidence  was  not 
used  to  establish  a  trust  in  B.,  but  to  rebut  a  trust  resulting  to  A.  from 
his  having  pii,id  the  purchase-money.  If  A.  had  taken  the  mortgage  in 
his  own  name,  but  had  declared  that  it  was  in  trust  for  B.,  the  question 
would  have  fairly  arisen,  whether  a  parol  declaration  could  create  a  trust 
in  a  mortgage  of  real  estate.  Bayley  v.  Boulcott,  4  Russ.  34G,  only  es- 
tablishes the  proposition  that  a  paper  prepared  under  the  direction  of  the 
owner,  but  which  she  refused  to  execute,  will  not  create  a  trust.  But  in 
McFadden  v.  Jenkyns,  1  Phill.  153,  1  Hare,  458,  it  was  directly  held  that 
a  parol  declaration  was  sufficient  to  create  a  trust  in  personal  property. 
If  there  are  doubts  and  difficulty  upon  the  supposed  words,  the  court  will 
give  weight  to  the  fact  that  they  were  not  written  to  infer  that  they  may 
not  be  the  deliberate  sentiments  of  the  party.  Dipple  v.  Corles,  11  Hare, 
183;  Patersou  v.  Murphy,  id.  91,  9'2. 

1  Hooper  v.  Holmes,  3  Stockt.  122;  Day  v.  Roth,  18  N.  Y.  44>i;  Rob- 
son  i;.  Harwell,  6  Ga.  589;  Higgenbottom  v.  Peyton,  3  Rich.  Eq.  398; 
Kirkpatrick  v.  Davidson,  2  Kelley,  297;  Gordon  v.  Green,  10  Ga.  534; 
Kimball  v.  Morton,  1  Halst.  Ch.  31.  See  McFadden  i'.  Jenkyns,  1  Hare, 
401,  1  Phill.  1.57;  Thorpe  v.  Owens,  5  Beav.  224;  George  v.  Bank  of  Eng- 
land, 7  Price,  646  ;  Hawkins  v.  Gordon,  2  Sm.  &  (iif.  451 ;  Peckham  i\ 
Taylor,  3  Beav.  250;  Ilunnewell  i:  Lane,  11  Met.  1G3;  Simms  v.  Smith, 
11  Ga.  195;  Crissman  v.  Crissman,  23  Mich.  218;  Berry  v.  Norris,  1 
Drew,  302  ;  Maffitt  v.  Rynd,  69  Penn  St.  30;  Thatcher  v.  Churchill,  118 
Mass.  108;  Gerrish  v.  New  Bedford  Inst,  for  Savings,  128  ^lass.  159; 
Chase  v.  Chapin,  130  IMass.  128;  Davis  v.  Coburn,  128  Mass.  377;  Hell- 
man  V.  McWilliams,  70  Cal.  449;  Hon  v.  Hon.  70  Ind.  135;  Hunt  i: 
Klliott.  SOTnd.  245;  Patterson  r.  Mills,  69  Iowa,  755;  Cobb  r.  Knight, 
71  Maine,  253;  Danser  v.  Warwick,  33  N.  J.  Kq.  133;  Gilman  v.  Mc- 
Ardle,  99  N.  Y.  451;  Gadsden  v.  Whaley,  14  S.  C.211;  Dickersou's 
App.  115  Penn.  St.  198. 

85 


§  86.]  EXPRESS   TRUSTS,    ETC.  [CHAP.    III. 

orally  or  in  writing  explicitly  or  impliedly  declares  that  he 
holds  personal  property  m  presenti  for  another,  he  thereby 
constitutes  himself  an  express  trustee.^  Under  these  de- 
cisions trusts  may  be  created  by  parol  in  any  mere  personal 
property,  as  in  the  shares  of  corporations,  although  the  cor- 
porations themselves  own  real  estate.^  If  one  receives  notes 
of  another  in  trust  to  pay  such  person's  debt,  and  agrees  with 
creditor  to  turn  over  the  notes  or  their  proceeds  to  him,  a 
trust  arises.^  So  where  a  fund  is  received  and  held  to  invest 
for  another.*  Money  or  a  debt  secured  by  mortgage  of  real 
estate  is  a  personal  chattel,  and  a  trust  in  the  money  or  mort- 
gage debt,  and  in  the  mortgage  itself,  may  be  created  by 
parol ;  ^  and  although  a  parol  declaration  of  trust  will  not 
affect  land,  yet  if  the  land  is  to  be  converted  into  money,  and 
is  converted,  a  parol  declaration  will  bind  the  proceeds  or  the 
money.^  And  this  will  hold  though  the  parol  agreement  to 
hold  the  money  in  trust  is  subsequent  to  the  parol  trust  re- 
specting the  land,  no  sale  by  the  parol  trustee  having  been 
contemplated."  Mr.  Hill  says  that  "  it  would  seem  to  follow 
that  legacies  and  annuities,  and  other  sums  of  money  charged 
on  land,  do  not  come  within  the  operation  of  the  statute 
respecting  parol  declarations  of  trusts  in  land."^  But  all 
chattels  real  are  within  the  statute,  and  trusts  in  them  must 
be  evidenced  in  writing,  as  in  case  of  freehold  or  leasehold 
interests.^     The  same  remarks  are  to  be  made  in  relation  to 

1  Tyler  v.  Tyler,  25  Brad.  (111.)  339. 

2  Porter  v.  Bank  of  Rutland,  19  Vt.  410  ;  Forster  v.  Hale,  3  Ves.  Jr. 
696 ;  5  Ves.  308 ;  Ashton  v.  Langdale,  4  De  G.  &  Sm.  402;  4  Eng.  L.  & 
Eq.  80 ;  Myers  v.  Perigal,  16  Sim.  533;  14  Eng.  L.  &  Eq.  229;  Hilton  v. 
Giraud,  1  De  G.  &  Sm.  183 ;  Kilpin  v.  KUpin,  1  M.  &  K.  520 ;  Wheatley 
r.  Purr,  1  Keen,  551. 

8  Walden  v.  Karr,  88  111.  49. 

*  Clapp  V.  Emery,  98  111.  523. 

s  Bellasis  v.  Corapton,  2  Vern.  294 ;  Benbow  v.  Townsend,  1  M.  &  K. 
510;  Childsv.  Jordon,  106  Mass.  322;  Hackney  v.  Brooman,  62  Barb.  650. 

«  Maffitt  V.  Rynd,  69  Penn.  St.  80  ;  Mohn  v.  Mohn,  112  Ind.  285;  Wise- 
man V.  Baylor,  69  Tex.  63. 

'  Thomas  v.  Merry,  113  Ind.  83. 

8  Hill  on  Trustees,  58  (n.) ;  see  note  1,  p.  74. 

9  Skett  V.  Whitmore,  Freem.  280;  Forster  v.  Hale,  3  Ves.  Jr.   696; 

86 


CHAP.   III.]  PERSONAL   PROPERTY.  [§  86. 

parol  trusts  of  personal  property  that  were  made  in  relation 
to  parol  trusts  of  real  estate  where  such  trusts  are  possible.^ 
The  subject-matter  of  the  trust  must  be  clearly  ascertained, 
as  well  as  the  purposes  of  the  trust  and  the  persons  wlio  are 
to  take  the  beneficial  interests.  Loose,  vague,  and  indefinite 
expressions  are  insufiicient  to  create  tlic  trust.^  A  mere 
declaration  of  a  purpose  to  create  a  trust  is  of  no  value  unless 
carried  into  effect.  A  simple  promise  of  a  future  donation 
without  consideration  good  or  valuable  creates  no  trust  that 
equity  can  enforce.^  If  the  trust  is  once  created  in  writing 
it  cannot  be  varied  by  parol,  and  if  it  is  once  created  by  parol 
it  cannot  be  altered  or  varied  by  other  declarations  of  the 
trustee  ;  as  where  a  daughter  delivered  to  her  father  87000 
upon  the  parol  trust  that  he  would  secure  the  money  in  trust 
for  her  and  invest  it  for  her  sole  benefit,  and  the  father  made 
his  will  giving  said  notes  to  two  trustees  to  receive  and 
pay  over  the  income  and  interest  to  the  daughter  during 
her  life,  and  at  her  decease  to  pay  the  principal  to  such 
persons  as  she  by  her  last  will  should  direct  and  appoint, 
and  in  default  of  such  appointment,  to  her  heirs-at-law : 
the  father  died,  and  his  estate  turning  out  insolvent,  she 
brought  a  bill  praying  that  the  notes  might  be  delivered 
to  some  person  to  be  appointed  by  the  court  as  trustee 
for  her.  Mr.  Justice  Wilde,  in  delivering  the  opinion  of 
the  court,  said,  "  It  is  very  clear  that  the  father,  his  execu- 
tor, and  his  heirs  and  creditors,  are  bound  by  the  trust. 
It  was  not  in  the  power  of  the  trustee  to  divest  or  defeat 
the  trust  without  the  consent  of  the  cestui  que  trusty  except 
by  a  sale  of  the  trust  property  to  a  bona  fide  purchaser,  for 
a  valuable  consideration,  and  without  notice  of  the  trust. 
Nor  could  the  trustee  vary  the  terms  of  the  trust,  or  declare 

Riddle  v.  Emerson,  1  Vern.  108;  Ilutchins  v.  Lee,  1  Atk.  417;  Bellasis  v. 
Compton,  2  Vern.  294;  Gardner  v.  Rowe,  5  Russ.  258;  Otis  i;.  Sill,  8 
Barb.  102. 

1  Ante,  §  77,  n.  4,  p.  60;  Ciissman  r.  Crissman,  23  ^Hch.  218. 

2  Bailey  v.  Irwin,  72  Ala.  505;  a  parol  trust  must  be  clear,  and  the 
evidence  of  it  convincing. 

8  .Ulen  V.  Withrow,  110  U.  S.  119. 

87 


§  87.]  EXPKESS   TRUSTS,   ETC.  [CHAP.   III. 

any  new  trust,  to  the  prejudice  of  the  cestui  que  trust,  unless 
with  her  consent."  ^ 

§  87.  Under  the  statutes  relating  to  the  execution  of  last 
wills  and  testaments,  no  parol  declaration  can  take  effect  as 
a  nuncupative  will,  except  in  the  case  of  soldiers  in  actual  ser- 
vice, and  mariners  at  sea.  These  persons  may,  according  to 
the  statutes  of  nearly  all  the  States,  make  nuncupative  wills 
of  their  wages  and  other  personal  property.  It  would  seem 
to  follow  that  they  can  create  valid  trusts  in  their  wages  and 
other  personal  property  by  nuncupative  wills  so  made  as  to  be 
proved  and  allowed  in  the  courts  of  probate,  or  other  courts 
having  jurisdiction  in  such  matters.  Personal  property  may 
be  so  given  and  delivered  to  one  in  trust  for  another  for  a 
particular  purpose  that  it  will  be  good  as  a  donatio  causa 
mortis^  and  the  trust  will  be  executed  by  courts  of  equity  ;  ^ 
but  courts  do  not  favor  donations  mortis  causa,  (a)  It  has 
been  held  that  a  gift,  mortis  causa,  of  a  fund  in  trust  to  be 
disposed  of  for  benevolent  purposes,  at  the  absolute  and 
unlimited  discretion  of  the  donee,  could  not  be  sustained.^ 

1  Hunnewell  v.  Lane,  11  Met.  163. 

2  Blunt  V.  Burrow,  4  Bro.  Ch.  75,  and  Perkins's  notes,  1  Ves.  Jr.  546, 
and  Sumner's  notes ;  Moore  v.  Darton,  4  De  G.  &  Sm.  517,  7  Eng.  L.  & 
Eq.  134;  Borneman  v.  Sedlinger,  3  Shep.  429,  8  Shep.  185;  Constant  v. 
Schuyler,  1  Paige,  316.  And  see  Tate  v.  Leithhead,  1  Kay,  658;  Ham- 
brooke  v.  Simmons,  4  Russ.  25 ;  Hill  v.  Hill,  8  M.  &  W.  401 ;  Drury  v. 
Smith,  1  P.  Wms.  404 ;  1  Story,  Eq.  Jur.  §  607. 

3  Dole  V.  Lincoln,  31  Me.  422.  But  the  court  decided  the  case  on  the 
ground:  (1)  that  there  was  not  a  sufficient  delivery  to  constitute  a  good 
gift  mortis  causa,  and  (2)  that  if  the  gift  had  been  good  in  form,  the  trust 

(a)  Upon  the  question  whether  a  S.  W.   561.      In    an   article  in    36 

check  drawn  upon  a  bank  may  be  Am.    L.   Reg.  n.  s.  246,  289,   Mr. 

an  equitable  assignment  pro  tanto,  Luther  E.  Hewitt  maintains,  upon 

see  Fourth  St.  Nat.  Bank  u.  Yardley,  a  review  of  the  authorities,  that  a 

165  U.   S.    634;   Re  Griffin,   [1899]  donatio   viortis   causa    may   be   well 

1  Ch.    408 ;  Mclntyre  v.    Farmers'  executed  in  equity,  upon  the  giving 

Bank  (Mich.),  73  N.  W.  233;  Nib-  of  a  check  by  the  donor,  even  though 

lack  V.   Park  Nat.   Bank,  169   111.  the  check  is  not  paid  or  presented 

517 ;   Dickinson  v.  Coates,  79  Mo.  before  his  death. 
250 ;  House  v.  Kountze  (Tex.),  43 


CHAP.    III.]  STATUTE   OF   WILLS.  [§  90. 

§  88.  An  attempt  was  made  at  one  time  to  hold  gifts  to 
charitable  uses  as  excepted  from  the  statute  ;  but  Lord  Talbot 
decided,^  and  Lord  Ilardwicke  aflh-med  the  decision,^  and 
Lord  Northington  said  every  man  of  sense  must  subscribe  to 
it,  that  a  gift  to  a  charity  nuist  be  treated  on  the  same  footing 
with  any  other  disposition,^ 

§  89.  In  addition  to  the  statute  of  frauds,  which  forbids  the 
creation  of  express  trusts  in  lands  unless  the  trust  is  evidenced 
by  some  writing  signed  by  the  party,  there  are  statutes  in 
every  State  that  regulate  the  execution  of  wills.  By  the 
original  statute  of  frauds,  all  wills  to  pass  real  estate  were  re- 
quired to  be  in  writing,  signed  by  the  testator,  and  attested 
in  his  presence  by  three  or  four  witnesses."*  This  statute  has 
been  substantially  adopted  in  all  the  States,  though  there  is 
some  diversity  in  the  number  of  witnesses  required.  By  this 
statute  nuncupative  wills  of  personal  chattels  were  not  pro- 
hibited, but  they  were  placed  under  such  regulations  that 
they  ceased  to  be  in  common  use.  Written  wills  of  personal 
property  were  not  required  to  be  attested  by  witnesses.  But 
in  England  at  the  present  time,  and  in  most  of  the  United 
States,  a  will  to  pass  personal  property  must  be  executed  with 
the  same  formalities,  and  attested  by  the  same  numljcr  of 
witnesses,  that  are  required  to  wills  affecting  real  estate.^ 

§  90.  It  follows  from  these  statutes,  that  no  trusts  in  real 
or  personal  estate  can  be  created  by  any  declaration  of  trust 

for  the  charity  could  not  be  executed  on  account  of  its  vagueness  and 
uncertainty. 

1  Lloyd  V.  Spillett,  3  P.  Wms.  344;  Lewin  on  Trusts,  Gl. 

2  Lloyd  V.  Spillett,  2  Atk.  150,  Barn.  384;  Adlington  i'.  Cann,  3  Atk. 
150. 

8  Boson  V.  Stathani,  1  Eden,  513  ;  Thayer  r.  Wellington,  9  Allen,  283. 

*  29  Car.  II.  c.  3,  §  5. 

6  It  is  not  within  the  general  purposes  of  this  treatise  to  enter  into 
a  discussion  of  the  manner  of  executing  wills  in  England  and  the  several 
States  of  the  Union.  The  reader  will  find  the  laws  of  the  various  States 
fully  and  accurately  stated  in  the  learned  notes  of  the  Hon.  J.  C.  Perkins 
to  1  Jarman  on  Wills,  pp.  113-135  (4th  Am.  ed.),  as  to  real  estate,  and 
pp.  135-144  as  to  personal  property. 

89 


§  91.]  EXPRESS   TRUSTS,   ETC.  [CHAP.    III. 

iu  a  will,  unless  the  will  is  executed  in  such  form  that  it  can 
be  allowed  in  the  court  of  probate  having  jurisdiction,  and  in 
such  form  that  it  will  pass  the  estate  that  it  is  intended  to 
operate  upon.  Mr.  Hill  lays  down  the  proposition,  that  if 
an  instrument  containing  a  declaration  of  trust  by  reason  of 
some  informality  cannot  be  supported  as  a  will,  it  may,  never- 
theless, if  signed  by  the  party,  be  a  sufficient  evidence  of  the 
creation  of  the  trust  to  take  it  out  of  the  statute.^  And  Lord 
Northington  declared  his  opinion  generally,  "  that  a  writing 
signed  by  the  party  who  has  power  to  make  the  trust,  declar- 
ing a  trust  upon  the  will,  is  good,  though  such  writing  be  not 
attested  by  three  witnesses  according  to  the  solemnities  of 
the  statute  of  frauds,"  '^  But  these  propositions,  in  the  broad 
form  in  which  they  are  stated,  are  clearly  not  law.  The 
dictum  of  Lord  Northington  stands  alone,  and  the  highest 
authorities  are  in  opposition  to  it.^  (a) 

§  91.  There  is  one  state  of  facts  in  which  the  above  propo- 
sition of  Mr.  Hill  may  be  good  law.  If  a  testator  in  making 
his  will  should  declare  by  way  of  recital  that  a  certain  parcel 

1  Hill  on  Trustees,  61.  Mr.  Hill  cites  NabiJ.  Nab,  10  Mod.  401,  1  Eq. 
Ca.  Ab.  401,  Gil.  Eq.  146.  The  case  was  this:  "  A  daughter  put  into 
her  mother's  hands  £180,  and  afterwards  made  a  will,  which  was  duly 
executed,  and  appointed  her  mother  executrix,  but  made  no  mention  of 
the  £180.  After  making  the  will  she  desired  her  mother  to  give  the  money 
to  a  third  person.  After  the  death  of  the  daughter,  this  third  person 
brought  a  bill  in  chancery,  alleging  that  the  mother  held  this  money  in 
trust.  The  mother  admitted  the  trust  in  her  answer,  and  set  up  that  she 
was  not  to  give  the  money  except  at  her  option.  The  court  held  that  the 
trust  was  admitted  by  the  answer,  and  that  the  trust  should  be  executed. 
It  will  be  observed  that  the  question  as  to  a  will  informally  executed  did 
not  arise.  The  question  was  wholly  upon  the  effect  of  the  defendant's 
answer  in  chancery.  And  the  court,  as  reported  in  1  Eq.  Cas.  Ab.  404, 
said  that  if  the  mother  had  set  up  the  statute  of  frauds  the  trust  could 
not  have  been  carried  into  effect. 

2  Boson  V.  Statham,  1  Eden,  514. 

8  Adlington  r.  Cann,  3  Atk.  151;  Muckleston  v.  Brown,  6  Ves.  67; 
Stickland  v.  Aldridge,  9  Ves.  519  ;  Puleston  v.  Puleston,  Finch,  312 ; 
Thayer  u.  Wellington,  9  Allen,  283 ;  Burlington  University  v.  Barrett,  22 
Iowa,  60. 

(a)  See  Re  Smith ;  Champ  v.  Marshallsay,  64  L.  T.  13. 
90 


CHAP.   III.]  STATUTE   OF   WILLS.  [§  92. 

of  land,  or  sum  of  money,  was  held  by  him  upon  trusts  therein 
stated,  and  the  will  should  be  so  informally  executed  that  it 
could  not  bo  proved  in  a  court  of  probate, still,  if  it  was  .signed 
by  him,  it  would  seem  to  be  as  good  proof  of  the  trust  as 
letters  and  other  memoranda  signed  by  the  party  and  found 
after  his  death,  (a)  In  such  case  the  will  could  have  no  efi'ect 
in  creating  the  trust,  it  would  be  simply  proof  in  writing  of 
a  trust  already  created  and  existing  at  the  date  of  the  will. 
But  if  the  validity  of  the  trust  in  any  way  depended  upon  the 
effect  of  the  will  in  transferring  the  title  to  the  property,  the 
will  could  not  be  used  in  evidence,  unless  it  was  itself  so 
executed  as  to  be  valid  as  a  will.^  In  all  cases  where  trusts 
originate  in  a  will,  the  will  must  be  executed  according  to 
the  statute,  or  it  cannot  be  used  as  a  declaration  and  proof 
of  the  trusts.  (6) 

§  92.  Mr.  Lewin  clearly  states  the  law  and  gives  the 
reasons,  as  follows :  "  We  must  bear  in  mind  that  the  abso- 
lute owner  of  property  combines  in  himself  both  the  legal 
and  equitable  interest,  and  when  the  legislature  enacts  that 
no  devise  or  bequest  of  property  shall  be  valid  without  cer- 
tain ceremonies,  a  testator  cannot  by  an  informal  instrument 
affect  the  equitable  any  more  than  the  legal  estate,  for  the 
one  is  a  constituent  part  of  the  ownership  as  much  as  the 
other.  Thus  a  person  cannot,  but  by  will  duly  signed  and 
attested,  give  a  sum  of  money  originally  and  primarily  out 
of  land ;  for  the  charge  is  part  of  the  land  and  to  be  raised 
out  of  it  by  sale  or  mortgage.'*  And  if  a  testator  by  will 
duly  signed  and  attested  give  lands  to  A.   and  his  heirs 

^  Anding  v.  Davis,  38  Miss.  574. 
2  Brudenell  v.  Boughton,  2  Atk.  272. 

(a)  This  view  was   approved  in  cation  does  not,  however,  necessarily 

Leslie  U.Leslie,  03  N.  J.  Eq  275,281.  affect  a  trust  created  contempora- 

(h)  An  imperfectly  executed  or  neously  by  a  separate   instrument 

revoked  will  is  insufficient  as  proof  which  is  to  be  executed  according 

of  a  trust  thereby  created.      Davis  to  the  terras  of  the  will.     See  Kopp 

V.  Stambough,  1G3  111.  557 ;  Chase  v.   Gunther,  05  Cal.   63  ;    Keith  v. 

V.  Stockett,  72  Md.  235.     Its  revo-  Miller,  171  111.  64. 

91 


§  92.]  EXPRESS   TRUSTS,  ETC.  [CHAP.   Ill, 

'  upon  trust, '  but  without  specifying  the  particular  trust 
intended,  and  then  by  a  paper  not  duly  signed  and  attested, 
as  a  will  or  codicil,  declare  a  trust  in  favor  of  B.,  the  bene- 
ficial interest  under  the  will  is  a  part  of  the  original  owner- 
ship, and  cannot  be  passed  by  the  informal  paper,  but  will 
descend  to  the  heir-at-law.  ^  Again,  if  a  legacy  be  be- 
queathed by  a  will  in  writing  to  A.  '  upon  trust,'  and  the 
testator  by  parol  express  an  intention  that  it  shall  be  held 
by  A.  upon  trust  for  B.,  such  a  direction  is  in  fact  a  testa- 
mentary disposition  of  the  equitable  interest  in  the  chattel, 
and  therefore  void  by  the  statute,  which  imposes  the  neces- 
sity of  a  written  will.  If  it  be  said  that  such  expression  of 
intention,  though  void  as  a  devise  or  bequest,  may  yet  be 
good  as  a  declaration  of  trust,  and,  therefore,  that  where 
the  legal  estate  of  a  freehold  is  well  devised  a  trust  may  be 
engrafted  upon  it  by  a  single  note  in  writing;  and  where  a 
personal  chattel  is  well  bequeathed,  a  trust  of  it,  as  excepted 
from  the  seventh  section  of  the  statute  of  frauds,  may  be 
raised  by  a  mere  parol  declaration,  —  the  answer  is,  that  a 
wide  distinction  exists  between  testamentary  dispositions 
and  declarations  of  trust.  The  former  are  ambulatory  until 
the  death  of  the  testator,  but  the  latter  take  effect,  if  at  all, 
at  the  time  of  the  execution.  '  The  deed,'  observed  Lord 
Loughborough,  in  a  similar  case,  '  is  built  on  the  will ;  if 
the  will  is  destroyed,  the  deed  I  should  consider  absolutely 
gone ;  the  will  without  the  deed  is  incomplete,  and  the  deed 
without  the  will  is  a  nullity. '  ^  And  Mr.  Justice  Buller 
observed,  '  A  deed  must  take  place  upon  its  execution  or  not 
at  all  •  it  is  not  necessary  for  a  deed  to  convey  an  immediate 
interest  in  possession,  but  it  must  take  place  as  passing  an 
interest  to  be  conveyed  at  the  execution :  but  a  will  is  quite 
the  reverse,  and  can  only  operate  after  death. '  ^  We  may 
therefore  safely  assume,  as  an  established  rule,  that  if  the 
intended  disposition  be  of  a  testamentary  character  and  not 
to  take  effect  in  the  testator's  lifetime,  but  ambulatory  until 

1  Adlington  v.  Cann,  3  Atk.  151. 

2  Habergham  v.  Vincent,  2  Ves.  Jr.  209. 
8  Ibid. 

92 


CHAP,   III.]  STATUTE   OF   WILLS.  [§  93. 

his  death,  such  disposition  is  inoperative,  unless  it  be 
declared  in  writing  in  strict  conformity  with  the  statutory 
enactments  regulating  devises  and  bequests."^  (a) 

§  03.  There  is  an  additional  reason  in  the  United  States 
why  a  will  or  testamentary  paper  informally  executed  can- 
not be  used  as  an  original  declaration  of  trust.  In  nearly 
all  the  United  States  no  will  can  be  used  to  prove  the  trans- 
fer of  any  interest,  legal  or  equitable  in  property  of  the 
testator,  unless  such  will  has  been  duly  proved,  allowed, 
and  recorded,  in  a  court  of  probate  having  jurisdiction 
over  it; 2  and  if  such  will  is  to  be  used  to  affect  the  title  to 
property  in  any  State  other  than  the  one  where  it  is  origi- 
nally proved,  it  must  be  recorded  in  such  other  State  ;3  so  a 
court  in  equity  has  no  jurisdiction  over  trusts  created  by 
the  will  of  a  foreigner,  a  certified  copy  of  which  is  not  filed 
in  the  probate  court  of  the  jurisdiction  where  the  remedy  is 
sought.*  But  no  will  can  be  proved  and  allowed  in  a  pro- 
bate court  unless  it  is  duly  executed  under  the  statutes  in 
force  where  it  is  made.  This  rule  does  not  interfere  with 
the  doctrine  that  a  testator  may  by  his  last  will  refer  to  and 
incorporate  therein  any  document  or  paper  which  is  in 
actual  existence  at  the  time,  and  is  thus  made  a  part  of  his 
will.^     In  such  cases,  all  such  papers  must  be  clearly  iden- 

1  Lewin  on  Trusts,  66  (2d  Am.  ed.). 

2  Rex  V.  Netherseal,  4  T.  R.  258;  1  Wms.  Ex'rs,  172;  Strong  v.  Per- 
kins, 3  N.  II.  517  ;  Kittredge  v.  Fulsome,  8  N.  H.  98 ;  2  Redf.  on  Wills, 
10;  Methain  v.  Devon,  1  P.  Wms.  529  ;  Inchiquiu  v.  French,  1  Cox,  1. 
And  see  Mr.  Lewin's  remarks  upon  this  last  case,  Lewin  on  Trusts, 
p.  49. 

8  Wilson  t;.  Tappan,  6  Ohio,  172  ;  Bailey  r.  Bailey,  8  Ohio,  239  ;  Ives 
V.  Allyn,  12  Vt.  589  ;  Campbell  v.  Sheldon,  13  Pick.  8 ;  Campbell  i:  Wal- 
lace, 10  Gray,  162;  2  Redf.  on  Wills,  10. 

*  Campbell  v.  Wallace,  2  Gray,  1G2. 

6  1  Wms.  Ex'rs,  289,  200,  and  notes;  Willington  v.  Adam,  1  V.  &  B. 

(a)   An  erroneous   recital   in    a  not  enable  the  child  to  claim  such 

will  that  the  testator  has  by  another  land  under  the  will   or  otherwise, 

instrument  conveyed  certain  land  to  Hunt  r.  Evans,  131  111.  496;  Stodder 

his  child  as  an  advancement  does  v.  Hoffmann,  158  111.  486. 

93 


§  93.]  EXPKESS   TRUSTS,   ETC.  [CKAP.   III. 

tified  and  probated  and  recorded  with  the  will  as  a  part 
thereof,  and  such  papers  must  be  in  actual  existence  at  the 
time  of  making  the  will.  If  they  are  made  afterwards,  they 
must  be  so  executed  that  they  may  be  probated  as  a  revoca- 
tion of  the  will,  or  as  a  codicil  thereto,  or  they  will  have  no 
effect ;  ^  (a)  as  where  a  testator  made  an  absolute  devise  of 
an  estate,  and  left  a  declaration  of  trust  not  referred  to  in 
the  will,  and  not  duly  attested,  and  not  communicated  to  the 
devisee  nor  assented  to  by  him  in  the  testator's  lifetime, 
the  devisee  is  entitled  to  both  the  legal  and  beneficial  in- 
terest, because  it  is  a  good  devise  on  the  face  of  the  will, 
and  the  informal  declaration  of  trust  cannot  be  probated  or 
admitted  in  evidence.^     So,  if  a  testator  should  devise  real 

445  ;  Habergham  v.  Vincent,  2  Ves.  Jr.  228  ;  Smart  v.  Prujean,  6  Ves.  560; 
Goods  of  Lady  Truro,  L.  R.  1  P.  and  D.  201 ;  Doe  v.  Walker,  12  M.  & 
W.  .591,  600 ;  In  re  Earle's  Trusts,  4  K.  &  J.  673 ;  Allen  v.  Haddock,  11 
Moore,  P.  C.  201 ;  Croker  i-.  Hertford,  4  Moore,  P.  C.  339,  363  ;  Thayer 
V.  Willington,  9  Allen,  283. 

1  Adlington  v.  Cann,  3  Atk.  141-152;  Briggs  v.  Penny,  3  De  G.  &  Sm. 
547,  3  Mac.  &  G.  546  ;  8  Eng.  L.  &  Eq.  231 ;  Johnson  v.  Ball,  5  De  G.  & 
Sm.  85;  Dawson  u.  Dawson,  1  Chev.  148;  Johnson  v.  Clarkson,  3  Rich. 
Eq.  305 ;  Thayer  v.  Willington,  9  Allen,  283.  How  far  papers  referred 
to  in  a  will  become  part  thereof  may  be  a  very  troublesome  question. 
Statutes  require  last  wills  to  be  solemnly  attested  or  witnessed  by  a  cer- 
tain number  of  witnesses.  Whether  papers  referred  to  in  the  will  as  in 
actual  existence  but  not  attested  by  the  witnesses  can  be  probated,  and 
if  they  cannot  be  probated  whether  they  can  have  any  effect  upon  the 
disposition  made  by  the  will,  or  of  the  construction  of  it,  has  not  been 
determined. 

2  Adlington  v.  Cann,  3  Atk.  141;  Stickland  v.  Aldridge,  9  Ves.  519; 
Briggs  V.  Penny,  3  De  G.  &  Sm.  547;  3  Mac.  &  G.  546;  8  Eng.  L.  &  Eq. 
231;  Wallgrave  v.  Tebbs,  2  K.  &  J.  313;  Lee  v.  Ferris,  2  K.  &  J.  357  ; 
Russell  V.  Jackson,  10  Hare,  204;  Lomax  v.  Ripley,  3  Sm.  &  Gif.  48; 
Brown  v.  Brown,  12  Md.  87 ;  Thayer  v.  Willington,  9  Allen,  283;  Haber- 
gham V.  Vincent,  5  T.  R.  92,  2  Ves.  Jr.  204 ;  Rose  v.  Cunningham,  12 
Ves.  29;  Johnson  v.  Ball,  5  De  G.  &  Sm.  85;  Langdon  v.  Astor,  3  Duer, 
477;  Thompson  v.  Quimby,  2  Brad.  449;  Tucker  v.  Seaman's  Aid  Soc, 
7  Met.  404;  /?i  re  Sothron,  2  Curteis,  831  ;  Ferraris  v.  Hertford,  3  Cur- 
teis,  468  :  Waggstaff  v.  Waggstaff,  2  P.  Wms.  258;  Marlborough  v.  Godol- 
phin,  2  Ves.  Sr.  76. 

(a)  See  Pay  ton  v.  Almy,  17  R.  I.  605. 
94 


CUAP.   III.]  STATUTE    OF   WILLS.  [^  04. 

or  personal  property  to  A.  in  trust  and  state  no  trusts  upon 
which  A.  is  to  hold,  no  paper  not  referred  to  in  tlie  will, 
and  not  duly  executed,  could  be  received  in  evidence  to 
prove  the  trusts,  nor  could  A.  hold  the  beneficial  interest, 
because  he  is  stamped  with  the  character  of  a  trustee ;  but 
he  would  hold  only  the  legal  title,  while  the  beneficial  inter- 
est would  descend  or  result  to  the  testator's  heirs-at-law.^ 
But  if  any  words  in  the  will  itself  clearly  qualify  an  abso- 
lute devise  in  the  will,  and  show  the  testator's  intent  that 
others  should  share  the  property,  the  devisee  holds  in  trust. ^ 

§  94.  Even  at  common  law  parol  evidence  could  not  be 
received  to  convert  a  devisee  under  a  will  in  writing  into  a 
trustee.  In  Vernon's  Case  it  was  resolved  that  a  devise 
implies  a  consideration,  and  therefore  that  it  cannot  be 
averred  or  proved  by  parol  to  be  for  the  use  of  another  ;3 
"for  that,"  said  Lord  Ch.  B.  Gilbert,  "were  an  averment 
contrary  to  the  design  of  the  will  appearing  in  the  words;"* 
and  in  Lady  Portington's  Case,  the  court  refused  to  receive 
parol  evidence,  not  only  because  of  the  statute  of  frauds,  but 
also /rom  the  nature  of  the  thing. ^  For  the  same  reason,  at 
common  law  parol  evidence  of  a  trust  was  always  inadmis- 
sible against  a  legatee  under  a  written  will.^  Until  a  late 
statute"  in  England  a  person  appointed  executor  had  the 
title  to  all  the  personal  property,  and  was  entitled  to  take 
the  surplus,  after  paying  debts  and  legacies,  beneficially  to 

1  Ibid. ;  Muckleston  v.  Brown,  6  Ves.  52 ;  Boson  v.  Statham,  1  Ed. 
513. 

3  Major  V.  Herndon,  78  Ky.  128. 

•  Vernon's  Case,  1  Coke,  R.  4  a. 

*  Gilbert  on  Uses,  162. 

^  Lady  Portington's  Case,  1  Salk.  162.  It  is  stated  by  Jenkins  that 
at  common  law  parol  proof  might  be  received  to  engraft  a  trust  upon  a 
written  will.  Jenk.  3  Cent.  Cas.  26.  But  by  comparing  the  case  cited 
by  Jenkins  with  the  same  case  in  Fitzherb.  Ch.  Devise,  22,  it  will  be  seen 
that  Jenkins  was  mistaken  in  the  point  decided.  And  see  Lewiu  on 
Trusts,  58  (2d  Am.  ed.). 

«  Porey  v.  Juxon,  Nels.  135 ;  Fane  v.  Fane,  1  Vern.  30. 

'  11  Geo.  IV.  and  1  W.  IV.  c.  40. 

95 


§  95.]  EXPKESS  TRUSTS,  ETC.  [CHAP.  IH. 

himself,  and  no  parol  evidence  was  admissible  to  convert 
him  into  a  trustee  for  the  heirs  or  next  of  kin.^  But  the 
authorities  seem  to  establish  that  if  there  was  any  circum- 
stance appearing  on  the  face  of  the  will,  as  the  gift  of  a 
legacy  to  the  executor,  the  law  presumed  that  it  was  not 
intended  that  he  should  take  the  surplus  beneficially;  the 
executor  might  rebut  that  presumption  by  parol  evidence,^ 
when,  of  course,  the  next  of  kin  might  fortify  the  presump- 
tion by  opposing  parol  evidence  in  contradiction.  Where, 
however,  the  will  itself  invested  the  executor  with  the  char- 
acter of  trustee,  as  by  giving  him  a  legacy  "for  his  trouble," 
or  by  styling  him  a  "trustee"  expressly,  ihQ  prima  facie 
title  to  the  surplus  was  then  in  the  next  of  kin,  and  parol 
evidence  was  not  admissible  to  disprove  the  express  inten- 
tion. ^  By  the  act  referred  to  in  England,  and  by  statutes  in 
all  the  United  States,  an  executor  is  made  prima  facie  a 
trustee  for  the  next  of  kin.* 

§  95.  Where  an  agreement  is  entered  into  for  a  valuable 
and  legal  consideration,  and  a  trust  is  intended,  the  mere 
form  of  the  instrument  is  not  \Qrj  material ;  for  if  the  trust 
is  not  perfectly  created  or  executed  by  the  instrument,  a 
court  of  equity  can  enforce  it  as  a  contract.^  Where  a  hus- 
band had  treated  his  wife  with  extreme  cruelty,  so  that  she 
left  him  and  instituted  proceedings  for  a  divorce,  and  he 
gave  a  note  to  a  trustee  for  his  wife,  in  consideration  of  her 

1  Langham  v.  Sandford,  19  Ves.  641 ;  White  v.  Williams,  3  Yes.  &  B. 
72 ;  Coop.  58. 

2  Walton  V.  Walton,  14  Ves.  322;  Clennell  v.  Lewthwaite,  2  Ves.  Jr. 
477;  Langham  v.  Sandford,  17  Ves.  442;  Lynn  v.  Beaver,  1  T.  &  R.  66. 

^  Rachfield  v.  Careless,  2  P.  Wms.  158  ;  Langham  v.  Sandford,  17  Ves. 
435;  19  Ves.  641;  Gladding  t-.  Yapp,  5  Mad.  42;  White  v.  Evans,  14 
Ves.  21 ;  Walton  v.  Walton,  id.  322 ;  Read  v.  Steadman,  26  Beav.  495. 

^  Love  V.  Gaze,  8  Beav.  472;  Juler  v.  Juler,  29  Beav.  34;  Harrison  v. 
Harrison,  2  Hem.  &  Mill.  237;  Read  v.  Steadman,  26  Beav.  495;  Hill  v. 
Hill,  2  Hayw.  298;  Paup  v.  Mingo,  4  Leigh,  163;  Hays  v.  Jackson,  6 
Mass.  153 ;  Wilson  v.  Wilson,  3  Bin.  559 ;  Darrah  v.  McNair,  1  Ash. 
240 ;  2  Story's  Eq.  Jur.  §§  1208-1210,  and  notes  ;  Lewin  on  Trusts,  50. 

6  Baldwin  ??.  Humphrey,  44  N.  Y.  609;  Taylor  v.  Pownal,  10  Leigh, 
183. 

96 


CHAP.    III.]  VALUABLE   CONSIDERATION.  [§  95. 

giving  up  the  said  suit  and  resuming  cohabitation  with  hira, 
it  was  held  that  the  consideration  was  illegal;  but  the  dis- 
sent by  Holmes  is  far  weightier  than  the  majority  opinion.  ^  (a) 
If  a  deed  is  given  by  B.  to  A.  on  condition  that  A.  will 
support  B.  and  C,  a  trust  is  created  that  equity  will 
enforce.^  Wherever  'd  valuable  coiimleration  is  paid,  the  con- 
tract will  be  executed  as  near  to  the  intention  of  the  parties 
as  possible;  as  where  for  a  valuable  consideration  a  man 
executed  a  deed  of  land  purporting  to  be  under  his  hand  and 
seal,  but  no  seal  was  affixed,  by  reason  of  which  defect  the 
legal  title  did  not  pass,  the  court  held  that  the  defective 
deed  might  be  used  as  a  declaration  of  trust,  and  that  the 
holder  of  the  legal  title  should  hold  it  in  trust  for  the  grantee 
in  the  deed,  and  that  he  should  be  ordered  to  convey  ;3  and 
where  a  husband  for  a  meritorious  consideration  conveyed 
personal  property  directly  to  his  wife  by  deed,  which  could 
not  operate,  because  a  husband  cannot  convey  directly  to  his 
wife,  the  court  ordered  the  deed  to  stand  as  a  declaration  of 
trust  for  the  wife,  and  the  husband's  representatives  to  hold 
the  legal  title  in  trust  for  her.*  The  authorities  establish 
this  proposition,  that  where  there  is  a  valuable  consideration 
the  court  will  enforce  the  trust,  though  it  is  not  perfectly 
created,  and  though  the  instruments  do  not  pass  the  title  to 
the  property,  if  from  the  documents  the  court  can  clearly 
perceive  the  terms  and  conditions  of  the  trust,  and  the 
parties  to  be  benefited.  In  such  cases,  effect  is  given  to  the 
consideration  to  carry  out  the  intentions  of  the  parties, 
though  informally  expressed.  But  if  no  cestui  que  trust  is 
named,  or  so  designated  that  he  can  be  identified,  the  court 
cannot  carry  a  trust  into  effect,  however  clearly  it  may  be 

1  :MeiTill  V.  Peaslee,  116  Mass.  4G0. 
•-  Benscotter  r.  Green,  GO  Md.  3-27. 
»  Wadsworth   v.   Wendell,  5  Johns.  Ch.    224  ;   Il.iskill  r.    Freeman, 

1  Wins.  Eq.  (N.  C.)  3K 

*  Huntley  c.  Huntley,  8  Ired.    Eq.  250;   Livingston   r.    Livingston, 

2  Jolins.  Ch.  537;  Garner  v.  Garner,  1  Busb.  Eq.  1  ;  Jones  v.  Obinchain, 
10  Grat.  259;  Fellows  v.  Ileermans,  4  Lans.  230. 

(a)  See  "Whitehouse  v.  ^^^^itehouse,  90  Maine,  468. 
VOL.  I. —  1  gy 


§  96.]  EXPRESS   TRUSTS,   ETC.  [CHAP.   III. 

created  in  other  respects.^  Even  if  a  purchaser  of  land 
direct  a  declaration  of  trust  to  be  inserted  in  the  deed  to 
him,  he  will  be  bound  by  it,  though  it  is  voluntary  on  his 
part.2  And  if  no  trustee's  name  is  inserted  in  the  deed,  it 
may  be  reformed,  and  a  suitable  trustee  may  be  appointed 
and  inserted.^  {a) 

§  96-  And  where  there  is  no  valuable  consideration,  yet  if 
the  settlor,  by  a  clear  and  explicit  declaration  duly  executed 
and  intended  to  be  final  and  binding  upon  him,  makes  him- 
self a  trustee,  courts  of  equity  will  enforce  the  trust,  whether 
the  nature  of  the  property  be  legal  or  equitable,  and  whether 
it  be  capable  or  incapable  of  transfer.*  (b)     If  it  is  a  mere 


1  Dillage  v.  Greenough,  45  N.  Y.  438  ;  Ownes  v.  Ownes,  23  N.  J.  Eq.  60. 

2  Reilly  v.  Whipple,  2  S.  C.  277. 

3  Bumside  v.  Wayman,  49  Mo.  356. 

4  Ex  parte  Pye,  18  Ves.  140  ;  Thorpe  v.  Owen,  5  Beav.  224  ;  Wilcocks 
V.  Hannyngton,  5  Ir.  Ch.  38  ;  Draiser  v.  Brereton,  15  Beav.  221 ;  Gray  v. 
Gray,  2  Sim.  (n.  s.)  273;  Vandenberg  v.  Palmer,  4  Kay  &  J.  204;  Sta- 
pleton  V.  Stapleton,  14  Sim.  186  ;  Searle  v.  Law,  15  Sim.  99;  Bridge  v. 
Bridge,  16  Beav.  315;  Steele  v.  Waller,  28  Beav.  466  ;  Paterson  v.  Murphy, 
11  Hare,  88;  Bentley  v.  MacKay,  15  Beav.  12;  Ownes  v.  Ownes,  23  N.  J. 
Eq.  60;  Crawford's  App.,  61  Penu.  St.  52;  Morgan  v.  Malleson,  L.  R. 
10  Eq.  475  ;  McFadden  v.  Jenkyns,  1  Hare,  471.  Tn  the  last  case,  Sir  J. 
Wigram   said :  "  If  the  owner  of  property  executes    an   instrument  by 

(a)  A  trust  deed  in  which  the  own  benefit,  if  fraudulent  as  to 
trustee's  name  is  omitted,  may  be  creditors,  may  be  set  aside  by 
treated  as  an  equitable  mortgage  on  subsequent  creditors.  Brundage 
the  a]>^\ic2Ltion  of  the  cestui  que  trust,  v.  Cheneworth,  101  Iowa,  256; 
Dulaney  r.  Willis,  95  Va.  606.  See  Schenck  v.  Barnes,  49  K  Y.  S.  222; 
Dunn  V.  Raley,  58  Mo.  134.  156  N.  Y.  316;   Scott  v.  Keane,  79 

(b)  A  voluntary  trust,  of  which  Md.  709 ;  Williams  v.  Williams, 
the  settlor  has  attempted  to  make  (Ky.),43  S.  W.  198.  If  not  fraud- 
himself  the  trustee,  where  the  settlor  u lent  as  to  creditors,  a  secret  trust 
has  kept  the  property  in  his  own  for  the  grantor  will  not  be  treated 
hands  subject  to  his  own  disposal,  as  void.  Ibid.;  Brown  v.  Bradford, 
and  has  never  informed  the  bene-  103  Iowa,  378;  z??/ra,  §  585 ;  Craw- 
ficiaries  of  it,  is  invalid.  Welch  u.  ford  v.  Langmaid,  171  Mass.  309; 
Henshaw,  170  INIass.  409.  A  volun-  Donahoe  v.  Chicago  Cricket  Club 
tary  conveyance,  for  the  grantor's  (111.),  52  N.  E.  351. 

98 


CHAP.    III.]  VALUABLE    CONSIDERATION.  [§  97. 

agreement,  without  consideration,  to  execute  a  declaration 
of  trust,  courts  will  not  act  u])on  it;  but  if  a  party  has 
declared  himself  to  be  a  trustee,  the  beneficial  interest  in 
the  ])roperty  becomes  vested  in  tlu;  crntui  que  trust  with- 
out further  action,  and  the  cestui  que  trust  can  enforce  his 
rights.^ 

§  07.  If  the  donor  or  settlor  docs  not  propose  to  make 
himself  a  trustee,  the  trust  is  not  perfectly  created.  As 
where  there  is  a  mere  intention  of  creating  a  trust,  or  a  mere 
voluntary  agreement  to  do  so,  and  the  donor  or  settlor  con- 
templates some  further  act  to  be  done  by  him  to  give  it 
effect,  the  trust  is  not  completely  instituted ;  and  if  it  is 
voluntary,  the  settlor  cannot  be  compelled  to  complete  it.^ 

which  he  declared  himself  a  trustee,  and  had  disclosed  that  instrument  to 
the  cestui  qne  trust,  and  afterwards  acted  upon  it,  that  miglit  perhaps  be 
sufficient,  and  a  court  of  equity  might  not  be  bound  to  inquire  further 
into  an  equitable  title  so  established."  Mr.  Lewin  says  that  this  is  "  ex- 
pressed with  unnecessary  caution^  Lewin  on  Trusts,  57.  The  contrary 
■was  held  in  Bowering  v.  King,  37  Ala.  GOG ;  Walker  v.  Crews,  73  Ala. 
412,  417. 

1  Ex  parte  Pye,  18  Ves.  149  ;  Gee  v.  Liddell,  3o  Beav.  621.  To  create 
a  trust,  a  man  must  express  an  intention  to  become  a  trustee;  and  words 
that  express  a  present  gift  show  an  intention  to  give  property  over  to 
another,  and  not  to  retain  it  in  the  donor's  hands  for  any  purpose,  fidu- 
ciary or  otherwise.  Ileartley  r.  Nicholson,  L.  R.  19  Eq.  244  ;  Richards 
V.  Delbridge,  L.  R.  18  Eq.  11 ;  Ellison  v.  Ellison,  6  Ves.  656.  If  one  mode 
of  transfer  is  indicated,  the  court  will  not  give  effect  to  it  by  applying 
another.  Milroy  v.  Lord,  2  De  G.,  F.  &  J.  264 ;  Warriner  v.  Rogers, 
L.  R.  10  Eq.  340. 

2  Lloyd  V.  Brooks,  34  Md.  33  ;  Swan  v.  Frick,  id.  1.19  ;  Cotteen  ;•.  Jlis- 
sing,  1  ]\Iad.  170;  Bayley  v.  Bonlcott,  4  Russ.  345;  Dipple  r.  Corles,  11 
Hare,  ls3  ;  Jones  v.  Lock,  L.  R.  1  Ch.  25  ;  Caldwell  v.  Williams,  1  Bailey, 
Eq.  175;  Crompton  v.  Vasser,  19  Ala.  259;  Hayes  r.  Kershaw,  1  Sand. 
Ch.  258;  Reid  v.  Vanarsdale,  2  Leigh,  560 ;  Evans  v.  Battle,  19  Ala.  378; 
Pinkard  v.  Pinkard,  2  Ala.  649;  ^Minturn  v.  Seymour,  4  Johns.  Ch.  4P8; 
Acker  v.  Phoenix,  4  Paige,  305;  Dawson  v.  Dawson,  1  Dev.  Eq.  93;  Banks 
V.  ]\Iay,  3  A.  K.  IMarsh.  435;  Bibb  r.  Smith,  1  Dana,  580;  Darlington  v. 
McCoole,  1  Leigh,  36  ;  Tiernan  v.  Poor,  1  Gill  &  J.  217  ;  Forward  v.  Arm- 
stead,  12  Ala.  124;  Lawry  r.  ]\IcGee,  3  Head,  2t;9  ;  Lister  r.  Hodgson, 
L.  R.  4  Eq.  30 ;  Dillinger  v.  Llewelyn,  4  De  G.,  F.  &  J.  517;  Gardner  v. 
^lerritt,  32  Md.  78;  Lantermau  v.  Abernathy,  47  111.  437;  Shaw  v.  Bur- 

99 


§  98.]  EXPRESS   TRUSTS,    ETC.  [cHAP.    III. 

So  if  the  paper  executed  by  the  settlor  is  in  the  nature  of  a 
testamentary  disposition  which  requires  to  be  proved  in  a 
court  of  probate,  but  is  so  imperfectly  executed  that  it  can- 
not be  proved  as  a  last  will  and  testament,  no  trust  will  be 
created.^  (a) 

§  98.  But  if  the  trust  is  perfectly  created^  so  that  the 
donor  or  settlor  has  nothing  more  to  do,  and  the  person 
seeking  to  enforce  it  has  need  of  no  further  conveyances  from 
the  settlor,  and  nothing  is  required  of  the  court  but  to  give 
effect  to  the  trust  as  an  executed  trust,  it  will  be  carried 
into  effect,  at  the  suit  of  a  party  interested,  although  it  was 
without  consideration,  and  the  possession  of  the  property 
was  not  changed.^  {h)     And  this  will  be  true  although  the 

ney,  1  Ired.  Eq.  148  ;  Clarke  v.  Lott,  11  111.  105;  Read  v.  Robinson,  6  W. 
&  S.  338;  Yarborongh  v.  West,  10  Ga.  471;  Colinan  v.  Sarel,  3  Bro.  Ch. 
12;  Antrobus  v.  Smith,  12  Ves.  39;  Edwards  v.  Jones,  1  M.  &  Cr.  226; 
Dillon  V.  Coppin,  4  id.  647;  Jefferys  v.  Jefferys,  1  Cr.  &  Phil.  138;  Pen- 
fold  V.  Mould,  L.  R.  4  Eq.  562 ;  Disher  v.  Disher,  1  P.  Wms.  204. 

1  Ante,  §§  92-94;  Warriner  o.  Rogers,  L.  R.  16  Eq.  340;  Richardson 
V.  Richardson,  L.  R.  3  Eq.  686;  Morgan  v.  Malleson,  L.  li.  10  Eq.  475. 

2  Stone  V.  Hackett,  12  Gray,  227 ;  Ellison  v.  Ellison,  6  Ves.  662 ;  Pul- 

(a)  If  a  settlement  is  intended  to  840;  Soulard's  Estate,  141  Mo.  642. 
effectuate  by  gift,  the  court  will  not  The  delivery  of  the  property  may 
give  effect  to  it  by  construing  it  as  a  precede  or  follow  the  gift.  Alder- 
trust.  If  it  is  intended  to  take  effect  son  v.  Peel,  64  L.  T.  645.  It  may 
by  transfer,  the  court  will  not  hold  be  made  to  a  third  person  for  the 
the  intended  transfer  to  operate  as  a  donee.  Bump  v.  Pratt,  84  Ilun, 
declaration  of  trust,  for  then  every  201.  But  delivery  is  neither  neces- 
imperfect  instrument  would  be  made  sary  nor  predicable  of  a  gift  of  a 
effectual  by  being  converted  into  a  beneficial  interest.  Smith's  Estate, 
perfect  tru.st.  Moore  w.  Moore,  43  144  Penn.  St.  428.  A  gift  may  arise 
L.  J.  Ch.  617,  623;  Martin  ?'.  Funk,  from  necessary  implication.  Bishop 
75  X.  Y.  134;  Gannon  v.  McGuire,  v.  McCelland,  44  N.  J.  Eq.  4.50.  A 
47  X.  Y.  S.  870.  If  a  gift  was  clearly  deed  of  gift  may  be  admitted  to  pro- 
intended  by  a  writing,  which  fails  bate  as  a  will,  if  properly  executed 
for  want  of  delivery,  the  writing  therefor.  /«  re  Slinn,  15  P.  D.  156; 
cannot  be  upheld  as  a  declaration  of  see  Graves  v.  Safford,  41  111.  App. 
trust.  Wadd  v.  nazelton,137  N.  Y.  659  ;  Sanborn  v.  Sanborn,  65  X.  H. 
215;  Smith's  Estate,  144  Penn.  St.  172. 

428;  Roberts  v.  Mullinder,  94  Ga.  (h)  See  1  Ames  on  Trusts  (2d  ed.), 

493;  Wylie   v.    Charlton,    43   Neb.  125,  n. 
100 


CHAP.    III.]  VOLUNTARY   SETTLEMENTS.  [§  98. 

person  who  is  intended  to  be  benefited  has  no  knowledfre  of 
the   act   at  the  time   it  is  done,    provided  ho  acceids   and 

vertoft  V.  Pulvertoft,  18  Ves.  99;  Sloan  v.  Cadogan,  Sugd.  Ven.  &  I'ur. 
App.  26;  Edwards  v.  Jones,  1  M.  &  Cr.  226  ;  VVheatley  v.  Purr,  1  Keen, 
551;  Garrard  v.  Lauderdale,  li  Sim.  1;  CoUinsou  v.  Patrick,  2  Keen,  123; 
Dillon  V.  Coppiu,4  M.  &  Cr.  647;  Meek  v.  Kettlewell,  1  Hare,  464  ;  Fletcher 
V.  Fletcher,  4  Hare,  74;  Price  v.  Price,  4  IJeav.  59.S;  IJridge  v.  Bridge,  16 
Beav.  ;J15 ;  Beech  i;.  Keep,  18  Beav.  2S5;  Donaldson  v.  Donaldson,  1  Kay, 
711;  Scales  v.  Maude,  6  De  G.,  M.  &  G.  43 ;  Airey  r.  Hall,  3  Sm.  &  Gif. 
315;  Wright  v.  Miller,  4  Seld.  9  ;  Andrews  v.  nobson,23  Ala.  219;  Lech- 
mere  V.  Carlisle,  3  P.  Wms.  222;  Bunn  v.  Wintlirop,  1  Johns.  Ch.  3:29; 
Minturn  i-.  Seymour,  4  id.  498 ;  Dennison  v.  Goeliriug,  7  Barr,  17.");  Tolar 
V.  Tolar,  1  Dev.  Eq.  4o6;  Dawson  v.  Dawson,  id.  93,  396;  Hardin  i;.  Baird, 
6  Litt.  340;  Hayes  v.  Kershaw,  1  Sand.  Ch.  201;  Fogg  v.  Middleton, 
Riley,  Ch.  193;  Greenfield's  Estate,  2  Ilarr.  489;  Kirkpatrick  v.  McDon- 
ald, 1  Jones,  387  ;  Graham  v.  Lambert,  5  Humph.  595;  Henson  v.  Kinard, 
3  Strob.  Eq.  371;  Dupre  v.  Thompson,  4  Barb.  280;  Cox  v.  Sprigg,  6  Md. 
274  ;  Lane  v.  Ewing,  31  Mo.  75;  Ownes  v.  Ownes,  23  X.  J.  Eq.  60;  Baker 
r.  Evans,  1  Wins.  Eq.  (N.  C),  109;  Massey  v.  Huntington,  118  HI.  80; 
Richardson  v.  Richardson,  L.  R.  3  Eq.  686;  Toker  i^.  Toker,  3  De  G..  J. 
&  S.  487;  Howard  v.  Savings  Bank,  40  Vt.  597;  Tanner  v.  Skinner,  11 
Bush  (Ky.),  120.  Except  against  creditors  and  bona  Jide  purchasers  with- 
out notice.  Padfield  v.  Padfield,  68  111.  25 ;  Borum  v.  King,  Ala.  Sel.  Cas. 
534,  is  contra. 

In  Stone  v.  Ilackett.  12  Gray,  227,  the  settlor  had  purchased  stocks  in 
various  corporations  in  the  name  of  IL  P.  K.,  and  took  from  H.  P  K.  a 
declaration  that  she  held  the  stocks  upon  certain  trusts  therein  particu- 
larly specified.  Afterwards  the  settlor  caused  H.  P.  K.  to  indorse  and 
sign  upon  the  backs  of  the  certificates  a  triinsfer  to  the  plaintiff  and  a 
power  of  attorney  to  the  plaintiff  to  complete  the  transfer,  and  took  from 
her  a  declaration  of  trust,  stating  the  purpo.ses  fi^r  which  she  held  the 
stock.  The  settlor  died,  and  a  question  arose  as  to  the  title  to  the  stock. 
Chief-Justice  Bigelow  said  :  "  The  key  to  the  solution  of  the  question 
raised  in  this  case  is  to  be  found  in  the  equitable  principle  now  well 
established  and  uniformly  acted  on  by  courts  of  chancery,  that  a  volun- 
tary gift  or  conveyance  of  property  in  trust,  when  fully  completed  and 
executed,  will  be  regarded  as  valid,  and  its  provisions  enforced  and  car- 
ried into  effect  against  all  persons  except  creditors  and  bona  fide  purchas- 
ers without  notice.  It  is  certainly  true  that  a  court  of  equity  will  lend 
no  assistance  towards  perfecting  a  voluntary  contract  or  agreement  for 
the  creation  of  a  trust,  nor  regard  it  as  binding  so  long  as  it  remains  ex- 
ecutory. But  it  is  equally  true  that  if  such  an  acrreement  or  contract  be 
executi'd  by  a  conveyance  of  j^roperty  in  trust,  so  that  nothing  remains  to 
be  done  by  the  grantor  or  donor  to  complete  the  transfer  of  the  title,  the 

101 


§  98,]  EXPRESS    TRUSTS,   ETC.  [CHAP.    III. 

ratifies  it  when  he  is  notified,^  But  if  there  is  any  fraud, 
accident,  or  mistake  in  the  transaction,  courts  will  not  carry 
a  voluntary  trust  into  execution, ^ 

relation  of  trustee  and  cestui  que  trust  is  deemed  to  be  established,  and  the 
equitable  rights  and  intei'ests  arising  out  of  the  conveyance,  though  made 
•without  consideration,  will  be  enforced  in  chancery.  The  leading  case  in 
•which  the  principle  is  declared  and  acted  upon  is  Ellison  v.  Ellison,  6  Ves. 
656,  in  which  Lord  Eldon  decreed  the  enforcement  of  a  trust  which  iu  its 
creation  was  wholly  voluntary  and  without  consideration.  This  has  been 
followed  by  many  other  cases  in  which  the  same  principle  was  recog- 
nized, Pulvertoft  V.  Pulvertoft,  18  Ves.  84  ;  Ex  parte  Pye,  id.  140  ;  Sloan 
V.  Cadogan,  Sugd.  Ven  &  Pur.  (11th  ed.)  1119  ;  Fbrtescue  v.  Barnett, 
3  My.  &  K.  36  ;  Wheatley  v.  Purr,  1  Keen,  551 ;  Blakely  v.  Brady,  2  Dru. 
&  Wal.  311  ;  Browne  v.  Cavendish,  1  Jon.  &  La.  637;  Kekewich  v.  Man- 
ning, 1  De  G.,  J\I.  &  G.  176.  The  last-named  case  contains  a  full  discus- 
sion of  all  the  authorities,  and  a  clear  and  accurate  statement  of  the  law 
upon  the  subject. 

"  The  application  of  the  principle  established  by  these  authorities  is 
entirely  decisive  of  the  rights  and  duties  of  the  parties  to  this  suit.  The 
conveyance  or  transfer  of  the  shares  to  the  plaintiff  in  her  capacity  of 
trustee  was  full  and  complete,  and  vested  in  her  the  legal  title  to  the  prop- 
erty. No  further  act  was  to  be  done  by  the  original  owner  of  the  shares 
to  consummate  the  plaintiff's  title,  as  between  the  parties  the  delivery  of 
the  certificates  of  stock,  with  the  assignments  of  some  of  them  and  the 
power  of  attorney  to  transfer  the  others,  was  equivalent  to  a  complete  ex- 
ecuted transfer  of  the  shares.  Nor  is  it  at  all  material  to  the  validity  of 
the  plaintiff's  title  that  transfers  of  the  shares  had  not  been  recorded  in 
the  books  of  the  different  corporations  and  new  certificates  of  stock  taken 
out  by  her.  That  was  not  necessary  to  the  conveyance  of  the  legal  title 
as  between  the  donor  and  the  plaintiff.  This  is  well  settled  by  the  au- 
thorities in  this  State.  Quinn  v.  INIarblehead  Social  Ins.  Co.,  10  Mass. 
476;  Ellis  v.  Essex  Merrimack  Bridge,  2  Pick.  248;  Sargent  v.  Franklin 
Ins.  Co.,  8  Pick.  96  ;  Eames  v.  Wheeler,  19  Pick.  444.  Sucn,  too,  is  the 
plain  import  of  the  statute.  .  .  .  Nothing  therefore  was  left  in  fieri. 
The  transaction  was  a  completely  executed  transfer  of  property,  and  fully 
created  a  trust  which,  according  to  the  principles  already  stated,  a  court 
of  equity  is  bound  to  recognize  and  enforce,"     Penfield  v.  Public  Adm'r, 


1  Neilson  v.  Blight,  1  Johns.  Cas.  205;  Moses  v.  INIurgatroyd,  1  Johns. 
Ch.  119;  Weston  v.  Barker,  12  Johns.  276;  Cumberland  v.  Codrington,  3 
Johns.  Ch.  261.  And  see  Shepherd  v.  McEvers,  4  Johns.  Ch.  136 ;  Ilosford 
V.  Merwin,  5  Barb.  51 ;  Wetzel  v.  Chaplin,  3  Bradf.  386 ;  Brabrook  v. 
Boston  Five  Cents  Savings  Bank,  104  Mass.  231, 

2  Lister  v.  Hodgson,  L.  R,  4  Eq.  30, 

102 


CHAP.    III.]  VOLUNTARY    SETTLEMENTS.  [§  99. 

§  09.  The  trust  luust  be  for  a  lawful  purpose  and  perfectly 
created.  If  a  will  creates  several  trusts,  mnno  of  which  are 
legal  and  others  not,  the  lawful  ones  will  be  upheld  if  they 
can  be  separated  from  the  others.^  Whether  the  trust  is 
perfectly  created  or  not,  is  a  question  of  fact  in  each  case; 
and  the  court,  in  determining  the  fact,  will  give  effect  to 
the  situation  and  relation  of  the  parties,  the  nature  and 
situation  of  the  property,  and  the  purposes  or  objects  which 
the  settlor  had  in  view  in  making  the  disposition.^     A  vast 

2  Y..  D.  Smith,  505;  Millspaugh  v.  Putnam,  16  Abb.  380;  Hunter  v. 
Hunter,  19  IJarb.  631;  Grani^iar  v.  Arden,  lU  .Johns.  293;  Benlow  v. 
Towuseud,  1  My.  &  K.  506  ;  Mendoa  v.  jMerrill,  2  Edw.  Ch.  333;  Howard 
V.  Windham  County  Savings  Bank,  40  Vt.  597;  Sherwood  «;.  Andrews, 
2  Allen,  79 ;  Warriner  v.  Rogers,  L.  R.  16  Eq.  311 ;  Blasdel  r.  Locke, 
62  N.  H.  238. 

1  Kennedy  v.  Hoy,  105  X.  Y.  134. 

2  See  Brabrook  v.  Savings  Bank,  104  Mass.  228,  where  deposits  in  sav- 
ings banks  are  fully  discussed.  Jones  v.  Lock,  L.  R.  1  Ch.  25.  lu  this 
case  a  father  put  a  check  for  £900  into  the  hands  of  his  child,  nine  months 
old,  with  the  strongest  expression  of  an  intent  to  give  tlie  check  to  the 
child.  He  afterwards  took  the  check  and  locked  it  up,  saying  he  sliould 
keep  it  for  the  child,  and  died  the  same  day.  A  bill  was  broujjht  in  be- 
half of  the  child  against  his  father's  representatives  to  enforce  his  interest 
in  the  check  as  a  trust.  Lord  Cranworth  said  :  "  No  doubt  a  gift  may  be 
made  by  any  person  sui  juris  and  compos  mentis,  by  conveyance  of  real  es- 
tate or  by  delivery  of  chattels  ;  and  there  is  no  doubt  also  that  by  some 
decisions,  unfortunate  I  must  think  them,  a  parol  declaration  of  a  trust 
of  personalty  may  be  perfectly  valid  even  when  voluntary.  If  I  give  any 
chattel,  that  of  course  passes  by  delivery,  and  if  I  say  expressly,  or  im- 
pliedly, that  I  constitute  myself  a  trustee  of  personalty,  that  is  a  trust  exe- 
cuted, and  capable  of  being  enforced  without  consideration.  I  do  not 
think  it  necessary  to  go  into  any  of  the  authorities  cited  before  me.  They 
all  turn  upon  the  <iueslion  whether  what  has  been  said  was  a  declaration  nf  trust 
or  an  imperfect  gift.  In  the  latter  the  parties  would  receive  no  aid  from  a 
court  of  equity,  if  they  claimed  as  volunteers  ;  but  if  there  has  been  a 
declaration  of  trust,  then  it  will  be  enforced  whether  there  has  been  a 
consideration  or  not.  Therefore  the  question  in  each  case  is  one  of  fact,  has 
there  been  a  gift  or  not,  or  has  there  been  a  declaration  of  trust  or  not  ? 
This  case  turns  on  the  very  short  question  whether  the  father  intended  to 
make  a  declaration  that  he  held  the  property  in  trust  for  the  child,  and  T 
cannot  come  to  any  other  conclusion  than  that  he  did  not."  His  Lord- 
ship then  conimeiits  upon  the  evidence,  and  says  "  that  it  was  all  very 
natural,  but  that  the  father  would  liave  been  very  much  surprised  if  he 

103 


§  99.]  EXPKESS   TRUSTS,   ETC.  [CIIAP.    III. 

number  of  cases  have  been  decided  involving  the  last  three 
propositions.  There  is  much  seeming  conflict  in  the 
decisions,  and  it  would  be  an  eadless,  perhaps  useless,  task 
to  attempt  to  reconcile  them.  The  proposition  laid  down  by 
Lord  Cranworth,  that  it  is  a  question  of  fact  in  each  case 
whether  a  perfect  trust  is  created  or  not,  goes  far  to  recon- 
cile the  differences.  Some  judges  give  greater  prominence 
to  one  element  of  fact  in  the  case  than  other  judges,  and 
thus  different  judges  might  decide  the  same  question  upon 
the  facts  in  a  different  manner;  but  so  long  as  it  is  a  ques- 
tion of  fact  in  each  case,  the  rule  of  law  is  the  same,  how- 
ever the  fact  may  be  found.  When  a  deed  fully  declaring 
the  trust  is  executed  and  delivered,  and  nothing  further 
remains  to  be  done  by  the  grantor,  the  trust  is  created.^ 
Failing  to  name  the  beneficiary  will  not  be  fatal,  if  the  title 
is  properly  conveyed  and  the  trustee  admits  that  he  holds 
for  the  plaintiff.2  In  New  York,  however,  it  is  held  that 
the  absence  of  a  defined  beneficiary  capable  of  enforcing  the 
trust  is  in  general  fatal,  and  that  giving  power  to  the  trustee 
to  select  the  beneficiary  is  not  sufficient,  unless  the  persons 
among  whom  the  choice  is  to  be  made  are  so  defined  and 
limited  that  a  court  of  equity  could  in  default  of  selection 
by  the  trustee  enforce  the  trust  by  a  distribution  among  all 
the  beneficiaries.^    In  this  case  the  trust  was  to  have  prayers 

had  been  told  that  hp  had  parted  with  the  £000,  and  could  no  longer  dis- 
pose of  it;  and  that  the  child,  by  his  next  friend,  could  have  brought  an 
action  of  trover  for  the  check."  See  Scales  v.  Maude,  6  De  G.,  M.  &  G., 
51  ;  Hackney  v.  Vrooman,  62  Barb.  650;  Brabrook  v.  Boston  Five  Cents 
Savings  Bank,  104  ]\Iass.  228;  Richards  v.  Delbridge,  L.  R.  18  Eq.  11; 
Martin  v.  Funk,  75  N.  Y.  134  ;  Gerrish  i'.  New  Bedford  Inst,  for  Savings, 
1-28  Mass.  150;  Taylor  r.  Henry,  48  Md  550:  Stone  v.  Bishop.  4  Cliff. 
593  ;  Ray  v.  Simmons,  11  R.  T.  266 ;  O'Brien,  Pet'r,  id.  R.  I.  419;  Blais- 
dell  V.  Locke,  52  N.  H.  238.  The  decisions  are  not  uniform  as  to  the 
effect  of  a  deposit  in  Savings  Bank  and  entry  in  the  books  for  the  benefit 
of.  or  in  trust  for  a  child  or  other  benpficiary ;  in  some  cases  it  is  held  suf- 
ficient declaration  of  a  trust,  and  in  others  something  further  is  required, 
as  notice,  or  delivery  of  the  book. 

*  Massey  v.  Huntington,  118  111.  80 

2  Sleeper  v.  Iselin,  62  Iowa,  585;  Boardman  v.  Willard,  73  Iowa,  20. 

8  Holland  v.  Alcock,  108  N.  Y.  312. 
104 


CIIAI'.  in.]  VOLUNTAUY    SETTTEMENTS.  [§  100. 

offered  in  a  Roman  cliurch  for  tlic  repose  of  the  souls  of  the 
grantor,  liis  family,  and  all  others  in  purgatory.  A  deed 
saying, "The  following  notes  I  leave  in  trust  with  E.  C.  to 
he  divided  among  A.,  B.,  and  C.  at  my  death,"  was  held  to 
create  a  perfect  })rcsent  trust.  ^  A  conveyance  may  he  made 
upon  trusts  to  he  suhscquently  declared,  and  when  the  suh- 
sequcnt  declaration  occurs,  the  trust  is  treated  in  the  same 
way  as  if  declared  at  the  time  of  the  deed.'^  The  consent  or 
even  knowledge  of  the  cestui  is  not  a  necessary  element  in  the 
creation  of  a  valid  trust.  A  transfer  of  stock,  for  instance, 
in  proper  form  vests  the  title  in  the  transferee  suhjcct  to  his 
repudiation  when  informed  of  the  transaction.^ 

§  100.  If  the  donor  or  settlor  propose  to  make  a  stranger 
the  trustee  of  his  property,  and  the  property  is  a  legal  estate, 
capahle  of  legal  transfer  and  delivery,  the  trust  is  not  per- 
fectly created,  unless  the  legal  interest  is  actually  trans- 
ferred to  or  vested  in  the  trustee.  It  is  not  enough  that  the 
settlor  executed  a  paper  purporting  to  pass  it,  if  in  fact  the 
paper  does  not  have  that  effect.  The  intention  of  the  settlor 
to  divest  himself  of  the  legal  title  must  be  consummated  and 
executed,  or  the  court  will  not  enforce  the  trust.  As,  for 
instance,  if  a  settlor  execute  a  deed  in  trust  of  scrip,  stock, 
or  shares  in  cor{)orations,  which  scrip,  stock,  or  shares  can 
he  transferred  only  by  assignment  upon  the  backs  of  the 
certificates,  and  upon  the  company's  books,  the  deed,  if 
voluntary,  will  not  create  a  trust  which  the  court  will 
execute,  unless  the  stocks  are  actually  transferred  in  fact.* 

1  Egerton  v.  Carr,  94  N.  C.  648. 

2  Ireland  o.  Geraghty,  11  Biss.  (U.  S.)  405. 

3  Standing  v.  Bowring.  31  Ch.  D.  282. 

*  Clarrard  v.  Lauderdale,  2  R.  &  M.  451 ;  3  Sim.  1  ;  3Ieck  r.  Kettlewell, 

1  Hare,  464;  Dillin  v.  Coppin,  4  M.  &  Cr.  647;  Coningham  v.  Plunkett, 

2  Y.  &  Col.  Ch.  245 ;  Searle  v.  Law,  15  Sim.  95  ;  Price  v.  Price,  14  Beav. 
598;  Bridge  v.  Bridge,  16  Beav.  315;  Beech  r.  Keep,  18  Beav.  285;  Tot- 
ham  r.  Vernon,  2!)  Beav.  604;  Dillon  v.  Bone,  3  Gif.  238;  Milroy  v.  Lord, 
8  Jur.  (n.  s.)  806;  4  De  G.,  F.  &  J.  2(i4;  Parnell  v.  Hingston,  3  Sm.  & 
Gif.  337  ;  Kiddill  v.  Farnell,  ib.  428  ;  Weale  r.  Ollive,  17  Beav.  252  ;  Den- 
ing  V.  Ware,  22  Beav.  181;  Roberta  v.  Roberts,  11  Jur.  (n.  s.)  992;  Foi> 

105 


§  101.]  EXPRESS    TRUSTS,   ETC.  [CHAP.    III. 

And  so  of  mortgages,  mortgage  debts,  and  other  securities. 
If  anything  remains  for  the  donor  to  do  to  vest  the  legal 
title  in  the  donee,  the  court  cannot  execute  the  trust,  if  it  is 
voluntary.  Lord  Eldon  stated  the  principle  thus :  "  1  take 
the  distinction  to  be,  that  if  you  want  the  assistance  of  the 
court  to  constitute  a  cestui  que  trust,  and  the  instrument  is 
voluntary/,  you  shall  not  have  the  assistance  for  the  purpose 
of  constituting  a  cestui  que  trust,  as  upon  a  covenant  to 
transfer  stock,  &c.  ;  but  if  the  party  has  completely  trans- 
ferred stock,  (fee,  though  it  is  voluntary,  yet  the  legal  con- 
veyance being  effectually  made,  the  equitable  interest  will 
be  enforced  by  this  court.  ^ 

§  101.  But  if  the  subject  of  the  trust  is  a  legal  interest 
that  cannot  be  transferred  or  assigned  at  law,  as  a  bond  or 
any  other  chose  in  action,  what  then  is  the  rule  ?  On  the  one 
hand  it  has  been  argued  that  in  equity  the  universal  rule  is, 
that  a  court  will  not  enforce  a  voluntary  agreement  in  favor 
of  a  volunteer,  and  as  by  the  supposition  the  legal  interest 
remains  in  the  settlor  (who,  therefore,  at  law  retains  the 
full  control  and  benefit  of  it),  a  court  of  equity  will  not,  in 
the  absence  of  a  valuable  or  good  consideration,  deprive  him 
of  that  interest,  with  which  he  has  not  actually  parted. 
And  this  reasoning  has  been  sustained  by  numerous  cases.^ 
On  the  other  hand,  as  the  settlor  cannot  divest  himself  of 
the  legal  interest,  to  say  that  he  shall  not  constitute  another 

est  V.  Forest,  34  L.  J.  Ch.  428 ;  Peckham  v.  Taylor,  31  Beav.  250 ;  Lons- 
dale's Estate,  29  Penn.  St.  407;  Cressman's  App  ,  42  id.  147;  Jones?;. 
Obinchain,  10  Grat.  259;  Henderson  v.  Henderson,  21  Mo.  379;  Lane 
V.  Ewing,  31  Mo.  75;  Gilchrist  v.  Stevenson,  9  Barb.  9;  Doty  v.  Wilson,  5 
Lans.  7. 

1  Ellison  V.  Ellison,  6  Ves.  662;  Antrobus  v.  Smith,  12  Ves.  39;  Col- 
man  V.  Sarel,  1  Ves.  Jr.  50 ;  3  Bro.  Ch.  12  ;  Uening  v.  VV^are,  22  Beav. 
184;  Airey  v.  Hall,  3  Sm.  &  Gif.  315  ;  Kiddill  v.  Farnell,  id.  428;  Pul- 
vertoft  V.  Pulvertoft,  18  Ves.  89  ;  Brabrook  v.  Savings  Bank,  104  Mass. 
228. 

2  Edwards  v.  Jones,  1  My.  &  Cr.  226  ;  Ward  v.  Audland,  8  Sm.  .571 ;  C. 
P  Coop.  Cas.  (1840),  146  ;  8  Beav.  201  ;  Meek  v.  Kettlewell,  1  Hare,  464  ; 
Scales  r.  Maude,  6  De  G.,  M.  &  G.  43  ;  Sewell  v.  Moxsy,  2  Sim.  (n.  s.^ 
189 ;  Bridge  v.  Bridge,  16  Beav.  315;  Beech  v.  Keep,  18  Beav.  285. 

106 


CHAP.    III.]  VOLUNTARY   SLTTLEMEXTS.  [§  101. 

as  trustee  without  passing  tlie  legal  interest,  would  be  to 
debar  him  from  the  creation  oi"  a  trust  at  all  in  the  hands  of 
another,  and  tliat  the  rule,  therefore,  should  be,  that  if  the 
settlor  make  all  the  assignment  of  the  projierty  in  his  posver, 
and  perfect  the  transaction  as  far  as  the  law  permits,  the 
court  should  recogni/e  the  act  and  suj)port  tlie  validity  of 
the  trust.  And  this  reasoning  has  also  been  supported  by 
many  decided  cases. ^  In  a  late  leading  case,  Lord  Justice 
K.  Bruce  made  a  thorough  examination  of  all  the  authori- 
ties, and  established  this  proposition:  "It  is  upon  legal 
and  equitable  principles,  we  apprehend,  clear  that  a  person 
8ui  juris,  acting  freely  and  fairly,  and  with  sufficient  knowl- 
edge, ought  to  have,  and  has  it  in  his  power  to  make  in  a 
binding  and  effectual  manner  a  voluntary  gift  of  any  part  of 
his  property,  whether  capable  or  incapable  of  manual  delivery^ 
whether  in  possession  or  reversionary,  or  hoivsoever  circum- 
stanced.'^'''^ Mr.  Lewin  says,  "that  it  is  conceived  that  this 
principle  will,  for  the  future,  prevail,"  ^  and  it  has  been 
followed  ill  the  later  cases. ^  But  if  part  of  the  property  be 
capable  of  delivery  and  transfer,  and  part  of  it  incaj)able  of 
delivery,  and  that  which  might  have  been  legally  assigned 
and  delivered  is  not  so  assigned  and  delivered,  no  trust  is 
created.^ 

1  Fortescue  v.  Barnett,  3  IVfy.  &  K.  36 :  Roberts  v.  Lloyd,  2  Reav.  376 
Blakely  v.  Brady.  2  Dru.  &  Wal.  ?>\\  ;  Airey  v.  Hall,  :]  Sm.  &  Gif.  31.5 
Parnell  r.  Iliiigston,  id.  3.37:  Pearson  i;.  Amicable  Office,  27  Beav.  229 
Sloan  V.  Cadoi^an,  Sutrd.  Vend.  &  Pur.  App. 

2  Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  187. 
'  Lewin  on  Trusts,  58. 

*  Wilcocks  V.  ITannynpton,  5  Jr.  Ch.  4.'i ;  Voyle  v.  Hughes,  2  Sm.  &  Gif. 
18  ;  Gilbert  v.  Overton,  33  L.  J.  Ch.  683  ;  Way's  Settlem-nt,  10  Jur. 
(n.  s.)  HOG;  3t  L.  J.  Ch.  40;  Lambe  v.  Orton,'l  Dr.  &  Sm.  12.-):  Don- 
aldson V.  Donaldson,  Kay,  71 1 ;  Appeal  of  Elliott's  Ex'rs,  50  Peiin.  St.  75. 
And  see  Hill  on  Trustees,  140,  111  (1th  Am.  ed.)  ;  Morgan  v.  ]\Lalleson, 
L.  R.  10  Eq.  475. 

5  "Woodford  v.  Charnley,  28  Beav.  90.  In  Richardson  v.  Richardson 
L.  R.  3  £q.  086,  there  was  a  voluntary  assignment  of  all  the  personal 
property,  whatsoever  and  wheresoever,  of  the  assignor.  There  were  pro- 
missory notes  not  indorsed  by  the  assignor,  but  it  was  held  to  be  a  com- 
plete assignment  of  them  in  trust. 

107 


§  102.]  EXPRESS    TRUSTS,   ETC.  [CHAP.    III. 

§  102.  It  is  well  established  that  if  the  subject  of  the  trust 
is  an  equitable  interest,  the  cestui  qve  trust  may  create  a 
valid  trust  by  executing  an  assignment  of  his  interest  to  a 
new  trustee,  for  the  equitable  interest  can  be  transferred 
from  one  to  another,  and  as  the  relation  of  trustee  and  cestui 
que  trust  already  exists,  the  original  settlor  need  not  be 
called  upon  to  do  any  act.^  Lord  Justice  K.  Bruce  said: 
"Suppose  stock  or  money  to  be  legally  vested  in  A.  as  a 
trustee  for  B.  for  life,  and  subject  to  B. 's  life-interest  for 
C.  absolutely,  surely  it  must  be  competent  for  C,  in  the 
lifetime  of  B,,  with  or  without  the  consent  of  A.,  to  make 
an  effectual  gift  of  his  interest  to  D.  by  way  of  pure  bounty, 
leaving  the  legal  interest  and  legal  title  untouched.  If  so, 
can  C.  do  this  better  or  more  effectually  than  by  executing 
an  assignment  to  D  ?  "  ^  So  the  cestui  que  trust  can  assign 
voluntarily  his  equitable  interest  to  a  stranger  in  trust  for 
himself.^  Or  by  a  new  declaration  of  trust  the  cestui  que 
trust  can  direct  the  old  trustees  to  hold  his  interest  there- 
after upon  new  trusts.'*  But  it  has  been  decided  that  a 
voluntary  assignment  of  a  mere  expectancy  in  an  equitable 
interest  did  not  perfectly  create  a  trust  that  the  court  would 
enforce;  that  any  dealing  with  what  a  person  only  expects 
to  have  must  in  some  sense  be  in  fieri.^  And  if  a  settlor 
intend  to  make  a  voluntary  settlement  in  a  particular  mode, 
as  by  conveying  the  legal  title,  and  he  fails  to  convey  the 

1  Sloan  V.  Cadogan,  Sugd.  Vend.  &  Pur.  App.  This  case  was  questioned 
in  Beatson  v.  Beatson,  12  Sim.  281,  but  it  has  since  been  acted  on.  Voyle 
V.  Hughes,  2  Sm.  &  Gif.  18;  Lambe  v.  Orton,  1  Dr.  &  Sm.  125;  Gilbert 
r.  Overton,  2  Hem.  &  M.  110;  Woodford  r.  Charnley,  28  Beav.  99 ;  Way's 
Settlement,  2  De  G.,  J.  &  Sm.  365,  reversing  4  New  R.  453.  And  see 
Reed  v.  O'Brien,  7  Beav.  32;  Bridge  v.  Bridge,  16  Beav.  315;  Gannon  v. 
White,  2  Ir.  Ch.  207  ;  Donaldson  v.  Donaldson,  1  Kay,  711. 

2  Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  188. 

2  Sloan  V.  Cadogan,  ut  supra;  Cotteen  v.  Missing,  1  INIad.  176;  Godsall 
V.  Webb,  2  Keen,  99  ;  Collins  v.  Patrick,  id.  123;  Wilcocks  v.  Hannyng- 
ton,  5  Ir.  Ch.  38. 

*  Rycroft  v.  Christy,  3  Beav.  238  ;  McFadden  v.  Jenkyns,  1  Hare,  458; 
1  Phill,  153. 

5  ]\Ieek  V.  Kettlewell,  1  Hare,  464,  by  Sir  J.  Wigram,  affirmed  by  Lord 
Lyndhurst  in  1  Phill.  342. 
108 


CHAP.    III.]  VOLUNTARY   SETTLEMENTS.  [§  103. 

title,  the  court  will  not  lend  its  aid  to  give  effect  to  the 
settlement  in  another  and  different  mode,  as  by  converting 
the  attempted  conveyance  into  a  declaration  of  trust,  for  that 
would  be  to  convert  every  imperfect  voluntary  instrument 
into  a  perfect  trust.  ^ 

§  103.  In  case  of  a  sale  of  real  estate  for  a  valuable  con- 
sideration, nothing  passes  by  the  deed,  although  it  is  signed 
and  sealed,  until  the  purchase-money  is  paid  and  the  deed 
delivered  to  the  vendee,  or  until  so  much  is  done  that  the 
law  will  construe  the  deed  to  be  for  the  use,  or  under  the 
control,  of  the  vendee;  but  if  a  party  execute  a  voluntary 
settlement  and  the  deed  recites  that  it  is  sealed  and  deliv- 
ered, it  will  be  binding  upon  the  settlor  although  he  never 
parts  with  it,  but  keeps  it  in  his  possession  until  his 
death. 2  (a)  Still,  if  there  are  circumstances  that  show  that 
the  settlor  never  intended  the  deed,  though  executed,  to 
operate,  the  court  will  consider  them;  and  if  the  deed  was 

1  Milroy  v.  Lord,  8  Jur.  (n.  s.)  809;  Lister  v.  Hodgson,  L.  R.  4  Eq.  30. 

a  Jn  re  Way's  Trust,  2  De  G.,  J.  &  Sm.  365  ;  Fletcher  v.  Fletcher,  4 
Hare,  67;  Hope  v.  Harman,  11  Jur.  1097;  Jones  v.  Obinchain,  10  Grat, 
259;  Urann  v.  Costes,  109  Mass.  581  ;  Sear  v.  Ashwell,  8  Swaiist.  411  ; 
Barlow  v.  Heneage,  Pr.  Ch.  211;  Clavering  y.  Clavering,  2  Vem.  474; 
Cecil  V.  Butcher,  2  J.  &  W.  573;  Garnons  v.  Knight,  5  B.  &  C.  671  ;  Exton 
V.  Scott,  6  Sim.  31 ;  Hall  v.  Palmer,  3  Hare,  532  ;  Souverbye  v.  Arden,  1 
Johns.  Ch.  210;  Bunn  v.  Winthrop,  id.  329;  Boughton  r.  Boughton,  1 
Atk.  025;  Brackeiibury  c.  Brackenbury,  2  J.  &  W.  ;591  ;  Roberts  i;.  Rob- 
erts, Daniel,  143.     And  see  Cecil  v.  Butcher,  2  J.  &  W.  505. 

(a)  A  declaration  of  trust,  when  a  voluntary  family  settlement,  in 
relied  upon,  must  be  shown  to  have  the  presence  of  the  grantor's  family, 
been  delivered  as  well  as  signed  or  may  be  effective  from  the  time  of 
acknowledged,  even  when  recorded  its  execution,  though  retained  by 
by  the  grantor.  Delivery  is  pre-  the  grantor.  Tarbox  v.  Grant,  56 
sumed  when  the  paper  is  produced  N.  J.  Eq.  199;  O'Xeil  v.  Green- 
by  a  beneficiary  who  is  its  proper  wood,  106  Mich.  572.  The  trustee's 
custodian.  Govin  i;.  De  Miranda,  written  acceptance,  on  the  deed  of 
76IIun,  414;  Starbuck  r.  Farmers'  trust,  conclusively  shows  delivery. 
Loan  Ass'n,  51  N.  Y.  S.  58  ;  Loring  New  South  B.  Co.  v.  Gann,  101  Ga. 
V.  Ilildreth,  170  Mass.  328.  But  a  678. 
deed  executed  and  acknowledged  as 

109 


§  104.]  EXPKESS   TRUSTS,   ETC.  [CHAP.    III. 

never  delivered  it  will  be  one  circumstance,  and  it  may  be  a 
controlling  circumstance,  to  show  that  the  trust  was  never 
perfectly  created  or  that  it  was  revocable.^ 

§  104.  A  completed  trust  without  reservation  of  power  of 
revocation  can  only  be  revoked  by  consent  of  all  the  cestuis.^ 
If  a  voluntary  trust  for  the  benefit,  wholly  or  partly,  of  some 
person  or  persons  other  than  the  grantor  ^  is  once  perfectly 
created,  and  the  relation  of  trustee  and  cestui  que  trust  is 
once  established,  it  will  be  enforced,  though  the  settlor  has 
destroyed  the  deed,^  or  has  attempted  to  revoke  it  by  making 
a  second  voluntary  settlement  of  the  same  property  or  other- 
wise,^ or  if  the  estate,  by  some  accident,  afterwards  becomes 

1  Uniacke  v.  Giles,  2  Moll.  257;  Antrobus  v.  Smith,  12  Yes.  39;  Birch 
V.  Blagrave,  Amb.  262;  Dillon  v.  Coppin,  4  M.  &  Cr.  647;  Platmone  v. 
Staple,  Coop.  250;  Naldred  v.  Gilham,  1  P.  Wms.  577;  Cotton  v.  King,  2 
P.  Wms.  358,  674 ;  Alexander  v.  Brame,  7  De  G.,  M.  &  G.  525;  Otis  v. 
Beckwith,  49  111.  121. 

2  Sargent  v.  Baldwin,  60  Yt.  17. 
8  Light  V.  Scott,  88  111.  239. 

4  Tolar  V.  Tolar,  1  Dev.  Eq.  456  ;  Dawson  v.  Dawson,  id.  93,  396  ;  In  re 
Way's  Trust,  10  Jur.  837;  2  De  G.,  J.  &  Sm.  365;  Bitter's  App.  59  Penn. 
St.  9. 

^  Newton  V.  Askew,  11  Beav.  145;  Rycroft  v.  Christy,  3  Beav.  238; 
Boughton  V.  Boughton,  1  Atk.  625;  Brackenbury  v.  Brackenbury,  2  J.  & 
W.  391 ;  Clavering  v.  Clavering,  2  Vern.  473  ;  Roberts  v.  Roberts,  Daniel, 
143;  Cook  v.  Fountain,  3  Swans.  565;  Young  v.  Peachy,  2  Atk.  254; 
Cecil  V.  Butcher,  2  J.  &  W.  565;  Kekewich  r.  Manning,  1  De  G.,  M.  &.  G. 
176;  In  re  Way's  Trust,  2  De  G.,  J.  &  S.  365;  Hildreth  v.  Eliot,  8  Pick. 
293;  Stone  v.  Hackett,  12  Gray,  227  ;  Falk  v.  Turner,  101  Mass.  494; 
Souverbye  v.  Arden,  1  Johns.  Ch.  240;  Bunn  v.  Winthrop,  id.  329;  Den- 
nison  v.  Goehring,  7  Barr,  175;  Yiney  v.  Abbott,  109  Mass.  302;  Sewall 
V.  Roberts,  115  Mass.  272;  Cobb  v.  Knight,  74  INIaine,  2.53;  Gulick  r. 
Gulick,  39  N.  J.  Eq.  401;  Williams  v.  Yreeland,  32  id.  135;  McPherson 
V.  Rollins,  107  N.  Y.  316;  Nearpass  v.  Newman,  106  N.  Y.  47  ;  Meiers  v. 
Meigs,  22  Hun  (N.  Y.).  453.  As  where  A.  had  a  policy  of  insurance  is- 
sued on  his  life  "in  trust"  for  his  children,  and  notified  the  cesiuis  and 
paid  the  premiums  for  several  years,  it  was  held  that  he  could  not  revoke 
the  interest  of  his  children,  and  a  second  policy  issued  substantially  as  a 
continuation  of  the  first,  but  made  payable  to  A.'s  widow,  was  held  for  the 
children.  Garner  v.  Ger.  L.  Ins,  Co.,  110  N.  Y.  266.  It  must  be  ob- 
served, however,  that  the  absence  of  a  power  to  revoke  a  voluntary 
110 


CHAP.   III.]  VOLUNTARY   SETTLEMENTS.  [§  104. 

revested  in  the  settlor. ^  In  all  these  cases  the  first  perfectly 
created  trust  will  be  upheld,  with  all  its  consequences,  and 

settlement  or  trust  is  viewed  by  courts  of  equity  as  ;i  circumstance  of  sus- 
picion, and  very  sliffht  evidence  of  mistake,  misapprehension,  or  misun- 
derstanding on  Die  part  of  tlie  settlor  will  be  laid  liold  of  to  set  aside  the 
deed.  The  following  opinion  by  the  Chancellor  (Ruiiyon)  in  a  late  case 
in  New  Jersey,  Garnsey  v.  Mundy,  L'l  N.  J.  j:q.  2}:J,  reprinted  in  13  Am. 
Law  Reg.  (n.  s.)  345,  with  a  learned  note  by  Mr.  Bispham,  gives  a  very 
clear  view  of  the  law  applicable  to  voluntary  settlements  without  a  power 
of  revocation  made  under  circumstances  which  may  lead  to  the  conclu.sion 
that  the  settlor  did  not  intend  to  put  the  property  entirely  beyond  his  con- 
trol, or  that  he  acted  unadvisedly  or  improvidently  :  — 

"On  the  4th  of  July,  1801,  the  complainant,  Sarah  M.  Garnsey,  who 
Wiis  then  a  single  woman  (her  maiden  name  being  Sarah  ]\I.  Mundy),  and 
of  the  age  of  about  twenty-one  years,  was  seized  in  her  own  right,  in  fee, 
in  possession,  through  inheritance  from  her  father,  James  ]\Iundy,  de- 
ceased, of  a  parcel  of  unimproved  farming  land  of  about  seven  acres  in 
JNliddlesex  County  in  this  State,  and  was  also  the  owner  of  an  undivided 
third  of  the  remainder,  in  fee,  of  two  other  lots  there,  —  one  a  wood-lot 
of  about  two  acres,  and  the  other  the  house-lot,  containing  about  nine  and 
a  half  acres,  which  had  been  set  off  to  her  mother,  Elizabeth  Mundy,  in 
dower.  She  had  no  other  property,  real  or  personal.  By  a  deed  of  that 
date  she  conveyed  in  fee  to  her  mother,  for  the  expressed  consideration  of 
natural  love  and  affection  to  the  grantor's  daughter,  Elmina  May,  and  of 
fifty  cents  to  her  paid  by  her  mother,  the  whole  of  said  property  on  the 
following  trust  :  '  That  the  said  Elizabeth  Mundy  shall  and  will  hold, 
use,  occupy,  and  rent  the  same,  and  receive  the  rents,  issues,  and  profits 
thereof  to  and  for  the  maintenance  of  said  Elmina  May  Mundy  until  she 
shall  arrive  at  the  age  of  twenty-one  years,  or  in  case  of  her  death,  the 
said  Elizabeth  Mundy,  her  heirs  or  assigns,  shall  pay  the  rents  or  profits 
arising  as  above  to  the  said  Sarah  M.  Mundy,  and  in  further  trust  to 
convey  the  land  and  premises  with  the  appurtenances  herein  before  men- 
tioned, in  fee-simple,  to  the  said  Elmina  May  Mundy,  or  in  equal  shares 
to  her  and  any  other  children  of  said  Sarah  M.  Mundy  (sliould  there  be 
any  other),  when  the  youngest  of  said  children  shall  have  attained  the  age 
of  twenty-one  years ;  and  in  the  event  that  no  issue  of  the  said  Sarah  M. 


1  Ellison  V.  Ellison,  6  Ves.  656 ;  Smith  v.  Lyne,  2  Y.  &  Col.  345;  Pat- 
erson  t\  IMurphy,  11  Hare,  88;  Gilchrist  v.  Stevenson,  9  Barb.  9 ;  Uzzle  v. 
Wood,  1  Jones,  Eq.  220;  Browne  r.  Cavendish,  1  J.  is.  L.  637.  See  also 
Aylsworth  i;.  Whitcomb,  13  R.  I.  298,  where  it  is  said,  if  deliberate  intent 
to  make  it  irrevocable  does  not  appear,  the  absence  of  power  of  revocation 
will  be  prima  facie  evidence  of  mistake.  Estes  v.  Tillinghast,  4  R.  I.  270; 
Russell's  App.  75  Peun.  St.  269. 

Ill 


§  104.]  EXPRESS   TRUSTS,   ETC.  [CHAP.    III. 

the  settlor  will  be  declared  to  be  a  trustee.^  (a)  A  trust 
once  created  and  accepted  without  reservation  of  power  can 

Mundy  shall  survive  to  inherit  the  same,  that  the  estate  herein  named 
shall  be  conveyed  acccording  to  the  direction  of  the  executor  of  the  will 
of  the  said  Sarah  M.  Mundy  heretofore  made.' 

"In  18G4  Sarah  M.  Mundy  was  married  to  Silas  Garnsey.  The  bill  is 
filed  by  her  and  her  husband  against  her  two  children  and  her  mother, 
the  trustee,  to  set  aside  the  deed.  The  property  at  the  time  of  making  the 
conveyance  in  question  was  and  still  is  of  but  little  value  as  farming  land. 
The  buildings  upon  the  house-lot,  which  alone  was  improved,  were  old 
and  dilapidated  and  have  gone  to  decay,  and  even  the  fences  on  the  prem- 
ises are  down.  The  trustee,  who  is  a  woman  of  advanced  age,  was  and  is 
wholly  without  means,  except  her  dower.  The  deed  is  voluntary.  It  was 
made  at  the  suggestion  and  on  the  advice  of  the  grantor's  mother,  and  of 
her  uncle,  Dr.  Jacob  Martin,  her  mother's  brother.  The  grantor  neither 
proposed  nor  suggested  it.  Indeed,  it  appears  she  knew  nothing  of  it 
until  it  was  presented  to  her  for  her  signature,  and  she  was  urged  by  her 
mother  and  her  uncle  to  execute  it,  '  for  her  good.'  Their  motive,  they 
say,  was  to  save  the  property  for  her,  to  prevent  her  from  improvidently 
disposing  of  it.  No  professional  advice  whatever  was  taken.  The  deed 
was  drawn  by  a  son  of  Dr.  Martin,  at  the  latter's  direction  ;  and  its  exe- 
cution was  witnessed  by  Dr.  Martin,  who,  being  a  commissioner  of  deeds, 
took  the  grantor's  acknowledgment.  The  grantor  had  no  advice  what- 
ever, except  that  which  her  mother  and  uncle  gave  her.  Xot  only  was 
she  not  consulted  in  regard  to  the  matter  in  any  way,  but  it  was  clear 
that  she  did  not  understand  the  provisions  of  the  deed,  nor  their  effect. 
She  did  not  suppose  that  the  effect  of  the  conveyance  would  be  to  place 
the  property  beyond  her  reach  and  control.  Nay,  her  mother  and  uncle 
both  supposed  that  the  trust  was  revocable,  and  that  the  grantor  under  it 
retained  full  power  to  sell  the  property,  with  the  trustee's  consent.     The 


^  Ellison  V.  Ellison,  6  Ves.  656  ;  Smith  v.  Lyne,  2  Y.  &  Col.  345;  Pat- 
erson  v.  Murphy,  11  Hare,  88 ;  Gilchrist  v.  Stevenson,  9  Barb.  9. 

(a)  See  Thurston,  petitioner,  154  v.  Warner,   47   Minn.    446;    Hell- 
Mass.  596;    Keyes  v.   Carlton,  141  man  v.   McWilliams,  70  Cal.    449 
Mass.  45 ;  Beekman  v.  Hendrickson  Nichols   v.    Emery,    109   Cal.   323 
(N.  J.),  21  Atl.   567 ;  Crue  v.  Cald-  Nelson    v.    Ratliff,    72    Miss.    656 
well,  52  N.  J.  L.  215;    Dickerson's  Haxton  v.  McClaren,  1.32  Tnd.  235 
Appeal,  115  Penn.   St.   198;  Lines  Copeland  c.  Summers,  138  Ind.  219 
V.   Lines,   142  id.   149;   Stockett  v.  Brunson    v.    Henry,    140    111.    455 
Ryan,  176  id.  71;  Gaylord  v.    La-  Strong  i'.  Weir,  47  S.  C.  307 ;  Riggan 
fayette,   115    Ind.    423  ;   Hatch   v.  v.  Riggan,  93  Va.  78. 
St.  Joseph,  68  Mich.   220;   Ewing 
112 


CHAP.   III.]  VOLUNTARY   SETTLEMENTS.  [§  104 

only  be  revoked  by  the  full  consent  of  all  parties  in  interest;^ 
if  any  of  the  parties  are  not  in  being,  or  are  not  suijurin,  it 

conveyance  not  only  deprived  the  grantor  of  all  her  property,  without  re- 
serving a  power  of  revocation  to  enable  Iht  to  meet  the  exigencies  of  life, 
but  the  arrangement  whicli  it  made  wa.s  in  other  respects  injudicious, 
disadvantageous,  and  improvident.  Tlie  motives  and  intentions  of  the 
motlier  and  uncle  were  most  praiseworthy.  Their  design  manifestly  was 
simply  to  put  the  property  in  such  a  position  that  the  grantor  could  not 
dispose  of  it  without  her  mother's  consent  and  concurrence.  They  in 
good  faith  urged  her  to  make  the  deed.  She  and  they  were  alike  under 
an  erroneous  impression  as  to  the  effect  of  it.  From  the  operation  of 
such  a  conveyance,  made  under  such  circumstances,  equity  will  relicjve 
the  complainants.  The  rigidity  of  the  ancient  doctrine,  that  a  voluntary 
settlement,  not  obtained  by  fraud,  is  binding  on  the  settlor,  and  will  not 
be  set  aside  in  equity,  although  the  settlor  has  not  reserved  a  power  of  re- 
vocation (Villers  v.  Beaumont,  1  Vern.  100;  Petre  v.  Espinasse,  2  ^I.  &  K. 
490  ;  Bill  v.  Cureton,  2  M.  &  K.  503),  has  been  relaxed  by  modern  decisions. 
In  the  case  first  cited,  Villers  v.  Beaumont,  decided  in  1GS2,  the  Lord  Chan- 
cellor said  :  '  If  a  man  will  improvidently  bind  himself  up  by  a  voluntary 
deed,  and  not  reserve  a  liberty  to  himself  by  a  power  of  revocation,  this 
court  will  not  loose  the  fetters  he  hath  put  on  himself,  but  he  must  lie 
down  under  his  own  folly.'  Recent  cases,  however,  have  narrowed  the 
doctrine,  and  have  held,  not  only  that  the  absence  of  a  power  of  revocation 
throws  on  the  person  seeking  to  uphold  the  settlement  the  burden  of  prov- 
ing that  such  a  power  was  intentionally  excluded  by  the  settlor,  and  that  in 
the  absence  of  such  proof,  the  settlement  may  be  set  aside,  but  that  equity 
will  set  aside  the  settlement  on  the  application  of  the  settler,  when  it  ap- 
pears that  he  did  not  intend  to  make  it  irrevocable,  or  when  the  settlement 
would  be  unreasonable  or  improvident  for  the  lack  of  a  pronsion  for  re- 
vocation, (a)     In  Everitt  v.  Everitt  (1S70),  L.  II.  10  Eq.  405,  — a  case 


1  Hellman  v.  :Mc Williams,  70  Cal.  449. 

(a)  Voluntary  settlements,  with-  sence  of  such  power  of  revocation 

out  consideration,  when   testamen-  is  thus  recrarded  as  merely  one  cir- 

tary   in   character,   are    now   often  cumstance  to  be  considered  in  weifjh- 

treated  as  revocable,  though  a  power  ing  all  the  circumstances  of  the  case, 

of  revocation    may  not  be  therein  Brown  r.  Mercantile  Trust  Co.,  87 

reserved.     Neal  v.  Black,  177  Penn.  Md.   377.      In    Massachusetts    and 

St.  83;  Chestnut  St.  Nat.  Bank  v.  Texas,  it  is  held  that  a  voluntary 

Fidelity  Ins.  Co.,  186  id.  333;  Stur-  tru-st  completely   established,  with 

geon  i\  Stevens,  id.  3.50  ;  Wilson  v.  no   power  of   revocation    reservi'd, 

Anderson,  id.  531 ;  Krankel  t-.  Kran-  cannot  be  avoided  by  the  person  bv 

kel  (Ky.),  47  S.  W.  1084.     The  ab-  whom  and  with  whose  property  it 
VOL.  1.-8  113 


§  104.]  EXPRESS   TRUSTS,   ETC.  [CHAP.   III. 

cannot  be  revoked  at  all.^  It  is  perfectly  clear  that  where 
the  settlor  did  not  misapprehend  the  contents  of  the  deed, 

almost  precisely  similar  in  its  facts  to  that  under  consideration,  —  a  vol- 
untary settlement  was  set  aside  on  the  application  of  the  donor.  The 
court  said  :  '  It  is  very  difficult  indeed  for  any  voluntary  settlement,  made 
by  a  young  lady  so  soon  after  she  attained  twenty-one,  to  stand,  if  she 
afterwards  changes  her  mind  and  wishes  to  get  rid  of  the  fetters  which 
she  has  been  advised  to  put  upon  herself.' 

"  In  Wollaston  v.  Tribe  (1869),  L.  R.  9  Eq.  44,  a  voluntary  gift  which 
was  not  subject  to  a  power  of  revocation,  but  was  meant  to  be  irrevocable, 
was  held  to  be  invalid,  and  was  set  aside  on  the  donor's  application.  In 
pronouncing  the  decree,  the  court  said :  '  Of  course  a  voluntary  gift  is  per- 
fectly good  if  the  person  who  makes  it  knows  what  it  is,  and  intended  to 
carry  it  into  execution.'  In  Coutts  v.  Acworth,  L.  R.  8  Eq.  558,  it  was 
held  that  '  Where  the  circumstances  are  such  that  the  donor  in  a  voluntary 
settlement  or  gift  ought  to  be  advised  to  retain  a  power  of  revocation,  it 
is  the  duty  of  the  solicitor  to  insist  on  the  insertion  of  such  power,  and 
the  want  of  it  will  in  general  be  fatal  to  the  deed.'  In  Prideaux  t\  Lons- 
dale (1863),  1  De  G.,  J.  &  S.  433,  a  voluntary  settlement,  which  the  settlor 
was  advised  to  execute  by  persons  under  whose  influence,  as  regarded 
money  matters,  she  was,  and  which  subjected  her  property  to  trusts  and 
contained  provisions  which  the  court  thought  it  was  impossible  to  suppose 
she  understood,  and  against  which  she  ought  to  have  been  advised  and 
cautioned,  was  set  aside.  In  Hall  v.  Hall,  L.  R.  14  Eq.  365,  it  was  held 
that  a  voluntary  settlement  should  contain  a  power  of  revocation ;  and  if 
it  does  not,  the  parties  who  rely  on  it  must  prove  that  the  settlor  was 
properly  advised  when  he  executed  it,  and  that  he  thoroughly  understood 
the  effect  of  omitting  the  power,  and  that  he  intended  to  be  excluded 
from  the  settlement,  and  further,  if  that  is  not  established,  and  the  court 
sees  from  the  surrounding  circumstances  that  the  settlor  believed  the  in- 
strument to  be  revocable,  it  will,  even  after  the  lapse  of  twenty  years  and 
the  death  of  the  settlor,  interfere  and  give  relief  against  it.  The  decree 
in  that  case  was  reversed.     (1873,  L.  R.  8  Ch.  App.  430.)     In  his  opinion, 


1  Shaw  V.  Delaware,  &c.  R.  R.  Co.,  3  Stockt.  229. 

was  created.  Lovett  v.  Farnham,  trust-deed  of  a  woman,  made  in  con- 
169  Mass.  1 ;  Monday  v.  Vance  (Tex.),  templation  of  marriage,  is  not  a  mis- 
49  S.  W.  516.  Also,  in  Massachu-  take  entitling  her  to  relief.  Taylor 
setts,  that  such  a  trust  can  be  set  v.  Buttrick,  165  ]\Iass.  547.  In  Rich- 
aside  only  because  of  unsoundness  ards  v.  Reeves,  149  Ind.  427,  it  was 
of  mind,  fraud,  mistake,  or  undue  held  that  the  absence  of  a  power  of 
influence  ;  and  that  the  mere  omis-  revocation  in  a  voluntary  settlement 
sion  of  a  power  of  revocation  in  the  \s  prima  facie  evidence  of  mistake, 
114 


CHAP.    III.]  VOLUNTARY   SETTLEMENTS.  [§  104. 

and  there  was  no  fraud  or  undue  influence,  and  no  power  of 
revocation  was  reserved,  the  settlor  is  bound,  though  some 

Selbonie,  L.  C,  said:  'The  absence  of  a  power  of  revocation  in  a  volun- 
tary deed,  not  inipeaclied  on  the  ground  of  any  undue  influence,  is  of 
course  material  where  it  appears  that  the  settlor  did  not  intend  to  make 
an  irrevocable  settlement,  or  where  the  settlement  itself  is  of  such  a 
nature,  or  was  made  under  such  circumstances  as  to  be  unreasonable  and 
improvident,  unless  guarded  by  a  power  of  revocation.'  Forshaw  v. 
Welsby,  30  Beav.  243,  was  a  case  where  a  voluntary  settlement  was  made 
by  one,  in  extremis,  on  his  family.  It  contained  no  power  of  revocation  in 
case  of  the  settlor's  recovery.  On  his  recovery  it  was  set  aside  on  his 
application,  on  the  ground  that  it  was  not  executed  with  the  intention 
that  it  should  be  operative  in  case  of  his  recovery  from  his  illness.  See 
also  Huguenin  v.  Baseley,  Lead.  Cas.  in  Eq.  406;  Cooky.  Lamotte,  15 
Beav.  241 ;  Sharp  v.  Leach,  31  Beav.  491 ;  Phillipson  v.  Kerry,  32  Beav. 
623.  It  is  not  necessary,  however,  to  rest  a  decision  of  this  case  adverse 
to  the  deed  on  so  narrow  a  foundation  as  the  mere  absence  of  a  power  of 
revocation.  The  circumstances  under  which  a  voluntary  deed  was  exe- 
cuted may  be  shown,  with  a  view  of  impeaching  its  validity,  and  if  it 
appears  that  it  was  fraudulent  or  improperly  obtained,  equity  will  decree 
that  it  be  given  up  and  cancelled.  In  the  present  case  there  is  no  room 
for  doubt  that  the  grantor  was  induced,  by  those  in  whom  she  very  justly 
placed  confidence,  and  by  whose  better  judgment  she  was  willing  to  be 
guided,  to  execute  a  voluntary  deed  whose  effect  she  and  they  not  only 
did  not  understand,  but,  on  the  other  hand,  misapprehended;  and  which, 
so  far  from  being  according  to  their  intentions,  was  in  two  very  important 
respects,  at  least,  admittedly  precisely  the  reverse.  It  was  irrevocable ; 
but  they  all  supposed  it  was  revocable,  and  intended  that  it  should  be  so. 
It  deprived  the  grantor  of  the  power  of  sale;  but  they  all  supposed  that 
she  would  have  that  power,  and  intended  that  she  should  have  it,  clogged 
only  by  the  necessity  of  obtaining  her  mother's  consent  and  concurrence 
in  any  bargain  or  conveyance  she  might  make.  The  deed  contains  no 
power  of  sale  whatever.  The  testimony  of  all  the  parties  to  the  transac- 
tion —  the  grantor,  her  mother  and  uncle  —  has  been  taken  in  the  cause. 
It  satisfies  me  that  the  deed  was  not  '  the  pure,  voluntary,  well-understood 
act  of  the  grantor's  mind  '  (Lord  Eldon  in  Huguenin  v.  Baseley),  but  was 
unadvised  and  improvident,  and  contrary  to  the  intention  of  all  of  them. 
The  fact  that  the  infant  children  of  the  grantor  are  beneficiaries  under 
the  deed  will  not  prevent  the  court  from  setting  it  aside.  Huguenin  r. 
Baseley;  Everitt  v.  Everitt,  ubi  sup.  There  will  be  a  decree  that  the  deed 
be  delivered  up  to  be  cancelled."  See  also  Rhodes  v.  Bates,  L.  R.  1  Ch. 
252 ;  Leach  v.  Farr,  13  Am.  Law  Reg.  350  (s.  s.) ;  Villers  v.  Beaumont, 
1  Vern.  99;  Bridgman  v.  Greene,  2  Yes.  627;  Petre  v.  Espinasse,  2  M.  & 
K.  496;  Bill  v.  Cureton,  id.  511 ;  Hastings  l-.  Ord,  11  Sim.  205;  Coutts 

115 


§  104.]  EXrKESS   TEUSTS,   ETC.  [CHAP.   III. 

contingency  was  forgotten  and  unprovided  for.^  A  policy  of 
insurance  on  the  life  of  A.,  payable  to  his  mother,  who 
furnished  a  portion  of  the  money,  is  a  trust  which  cannot  be 
revoked  by  a  surrender  of  the  policy,  without  the  mother's 
consent,  and  the  issue  of  a  new  one  in  favor  of  A. 's  wife.^ 
The  effect  of  the  delivery  of  the  deed  of  trust  cannot  be 
impaired  by  any  mental  reservation  of  the  grantor,  or  oral 
condition  repugnant  to  the  terms  of  the  deed.^  But  where 
the  trust  deed  was  never  delivered  to  the  trustee  except  for 
safe  keeping,  and  on  the  understanding  that  it  should  be 
returned  for  cancellation  on  demand,  and  with  the  consent 
of  the  cestui  it  was  so  returned  and  cancelled,  no  trust 
arose.  ^  If  the  voluntary  settlement  be  subject  to  a  life  estate 
in  the  settlor,  and  also  subject  to  such  debts  as  he  contracts 
during  his  life,  he  can  defeat  the  trust  by  contracting  debts 
to  the  full  amount  of  the  estate,  even  if  the  debts  are  con- 
tracted by  giving  voluntary  bonds  for  the  purpose  of  defeating 
the  settlement.^  If,  however,  the  settlor  has  not  reserved 
the  right  to  revoke  the  settlement,  or  to  charge  it  with  his 
debts,  he  can  do  nothing  to  impair  the  rights  of  those  in 
remainder.^  Although  the  power  of  revocation  is  reserved, 
the  trust  is  as  good  and  effectual  as  if  irrevocable,  until  the 
power  is  exercised.^  (a)     Where  the  trust  does  not  break  the 

V.  Acwortb,  L.  R.  8  Eq.  538;  Phillips  v.  Mullings,  L.  R.  7  Ch.  244;  Hall 
V.  Hall,  L.  R.  8  Ch.  430;  Toker  v.  Toker,  3  De  G.,  J.  &  S.  487;  Evans  v. 
Russell,  31  Leg.  Int.  125. 

^  Keyes  v.  Carleton,  141  Mass.  45,  50. 

2  Pingrey  v.  Nat'l  Ins.  Co.  144  Mass.  374,  382. 

3  Wallace  v.  Berdell,  97  N.  Y.  13. 

*  Burroughs  v.  De  Couts,  70  Cal.  361. 
^  Markwell  v.  Markwell,  34  Beav.  12. 

«  Aubuchon  v.  Bender,  44  Mo.  560;  Dean  v.  Adler,  30  Md.  147;  Hall 
V.  Hall,  L.  R.  14  Eq.  365;  Beal  v.  Warren,  2  Gray,  447. 
T  Van  Cott  V.  Prentice,  104  N.  Y.  45. 

(a)  See  You  Hesse  v.  MacKaye,  when  coupled  with  a  power  of  ap- 

136N.  Y.  114;  Hiserodt  y.  Hamlett,  pointment,  is  not  such  an  interest 

74  Miss.  37,  47;  In  re  Wells,  42  Ch.  in  the  property  as  can  be  transferred 

D.  646;  Charles  v.  Burke,  60  L.  T.  to  another,  sold  under  execution  or 

380.     Such  power  to  revoke,  even  devised  by  will,  or  passed  to   an 
116 


CHAP.   III.]  VOLUNTABY  SETTLEMENTS.  [§  106. 

natural  course  of  descent  of  the  property,  and  is  not  needed 
for  the  protection  of  the  life  cestui,  who  is  the  grantor, 
equity  will,  on  application  of  the  cestui,  terminate  the  trust 
and  decree  a  conveyance.^  In  this  case  the  trust  was  made 
by  a  woman  before  marriage  for  herself  for  life,  remainder 
to  her  appointees  by  will,  or  her  heirs-at-law,  if  she  died 
intestate.  After  marriage  she  applied  for  a  conveyance  and 
discharge  of  the  trust,  and  as  the  natural  descent  was  not 
broken,  and  the  laws  of  the  State  sufficiently  protected 
married  women,  the  request  was  granted. 

§  105.  Nor  is  notice  to  the  cestui  que  trust  or  to  the 
trustee,  and  acceptance  by  him,  essential  to  the  validity  of  a 
voluntary  trust  as  against  the  settlor,  if  it  is  otherwise 
perfectly  created.  ^  But  the  absence  of  notice  may  become 
a  fact  of  more  or  less  importance  in  determining  whether 
the  trust  is  perfectly  created  or  not.^  As  between  pur- 
chasers for  value,  notice  or  no  notice  may  have  important 
effects;  but  a  voluntary  trust,  as  between  the  settlor,  the 
trustee,  and  the  cestui  que  trust,  can  be  perfectly  created 
without  it. 

§  106.  Under  the  statute  of  uses,  uses  could  be  raised 
either  upon  a  valuable  or  pecuniary  consideration,  or  upon 
what  was  called  a  good  or  meritorious  consideration;  that 
is,  a  consideration  arising  out  of  blood,  marriage,  or  family 

1  Nightingale  v.  Nightingale,  13  R.  I.  116. 

2  Tate  V.  Leithhead,  Kay,  658;  Donaldson  v.  Donaldson,  id.  711; 
Roberts  v.  Lloyd,  2  Beav.  376 ;  Burn  v.  Carvalho,  4  M.  &  Cr.  690;  Sloper 
V.  Cottrell,  6  El.  &  Bl.  504;  Gilbert  v.  Overton,  2  Hem.  &  Mill.  110; 
Kekewich  v.  Manning,  1  De  G.,  M,  &  G.  176 ;  Tierney  v.  Wood,  19  Beav. 
330;  Lamb  v.  Orton,  1  Dr.  &  Sm.  125;  Meux  v.  Bell,  1  Hare,  73;  Otis  v. 
Beckwith,  49  111.  121. 

8  Beatson  v.  Beatson,  12  Sim.  281 ;  Meek  r.  Kettlewell,  1  Hare,  476 ; 
1  Phill.  342;  Bycroft  v.  Christy,  3  Beav.  238;  Godsall  v.  Webb,  2  Keen, 
99;  McFadden  i-.  Jenkyns,  1  Phill.  153;  Bridge  v.  Bridge,  16  Beav.  315; 
Cecil  V.  Butcher,  2  J.  &  W.  573. 

assignee.      Jones    v.    Clifton,    101     112  U.  S.   344;    Hill  v.   Cornwall, 
U.  S.  225;    Brandies  i-.  Cochrane,    94  Ky.  512. 

117 


§   107.]  EXPRESS   TRUSTS,   ETC.  [CHAP.    III. 

affection,  and  the  moral  obligation  that  every  one  is  under 
to  provide  for  his  family  or  relations.  Thus,  a  covenant  to 
stand  seized  to  the  uses  of  a  stranger,  founded  upon  a 
valuable  consideration,  operated  under  the  statute  as  a  deed 
of  bargain  and  sale  to  be  enrolled,  and  conveyed  the  land  to 
the  stranger.  But  a  covenant  in  consideration  of  blood  or 
marriage,  to  stand  seized  to  the  use  of  a  wife  or  child  or 
other  relation,  created  a  use  only  in  the  cestui  que  trust,  and 
the  deed  need  not  be  enrolled.  In  all  cases  the  consideration 
of  this  conveyance  was  the  foundation  of  it.  Therefore,  a 
covenant  to  stand  seized  to  the  use  of  a  stranger  in  con- 
sideration of  love  or  affection  for  him  was  inoperative  for 
want  of  a  consideration;  and  a  covenant  in  consideration  of 
blood  or  marriage,  to  stand  seized  to  the  use  of  a  relative 
and  a  stranger,  vested  the  whole  use  in  the  relative,  and 
was  inoperative  as  to  the  stranger.  From  this  brief  state- 
ment can  be  seen  the  effect  and  meaning  of  what  was  called 
a  good  or  meritorious  consideration  under  the  statute  of 
uses.^ 

§  107.  In  analogy  to  this  doctrine,  under  the  statute  of 
uses  it  has  been  urged  that  a  voluntary  post-nuptial  settle- 
ment in  favor  of  a  wife  or  child,  executory  in  all  its  aspects, 
would  be  enforced  in  favor  of  such  wife  or  child  on  the 
ground  of  a  good  or  meritorious  consideration  for  such 
settlement. 2  And  in  Ellis  v.  Nimmo,  Sugden,  Lord  Chan- 
cellor of  Ireland,  after  a  most  exhaustive  examination  of  the 
authorities,  decided  that  the  meritorious  consideration  of 
providing  for  a  child  was  sufficient  to  lead  a  court  of  equity 
to  enforce  an  executory  contract  against  the  settlor. ^     This 

1  Sand.  Uses,  90-101  ;  2  Black.  Com.  338. 

2  Bonham  v.  Newcomb,  2  Vent.  365 ;  Leech  v.  Leech,  1  Ch.  Cas.  249 ; 
Fothergill  v.  Fothergill,  Freem.  256  ;  Sear  v.  Ashwell,  and  Gordon  v. 
Gordon,  3  Swanst.  411  ;  Watts  v.  Bulks,  1  P.  Wnis.  60  ;  Bolton  v.  Bolton, 
3  Sev.  414  ;  Goring  v.  Nash,  3  Atk.  186;  Darley  v.  Darley,  id.  399;  Hale 
V.  Lamb,  2  Eden,  292  ;  Evelyn  v.  Templar,  2  Bro.  Ch.  148  ;  Colman  v. 
Sarel,  1  Ves.  Jr.  50;  3  Bro.  Ch.  12 ;  Antrobus  v.  Smith,  12  Ves.  39;  Rod- 
gers  V.  Marshall,  17  Ves.  294 ;  Ellison  v.  Ellison,  6  Ves.  656. 

8  Ellis  V.  Nimmo,  Lloyd  &  Goold,  333. 
118 


CHAP.    Ill]  VOLUNTARY   SETTLEMENTS.  [§  108. 

case  met  witli  considerable  criticism,  and  several  cases  were 
decided,  more  or  less  in  opposition  to  it.^  In  Moore  v. 
Crolton,  he  allowed  it  to  be  overruled,  declaring,  however, 
at  the  same  time,  that  he  still  thought  it  decided  upon  sound 
principles  of  equity,^  so  that  now  it  may  be  considered  as 
settled  in  England,  that  an  executory  agreement  founded  on 
a  meritorious  consideration  only  will  not  be  executed  against 
the  settlor  himself.^ 

§  108.  As  to  other  parties  claiming  under  the  settlor,  if 
he  had  sold  the  estate,  or  become  indebted,  the  equity  of  a 
wife  or  child  claiming  as  cestui  que  trusty  on  the  ground  of  a 
meritorious  consideration,  would  not  be  enforced  against  a 
purchaser  or  creditors.*  But  if  the  settlor  subsequently 
made  a  voluntary  settlement,  or  died  without  disposing  of 
the  estate  by  some  act  inter  vivos,  there  were  authorities  that 
the  voluntary  cestui  que  trust  could  enforce  his  equity  as 
against  other  volunteers  under  another  settlement,^  or 
against  devisees  or  legatees,^  or  against  the  heir-at-law  or 
next  of  kin. 7  There  was,  however,  this  condition,  that  the 
persons  against  whom  the  settlement  was  sought  to  be 
enforced  could  not  also  plead  a  meritorious  consideration; 
for  if  they  also  were  children  of  the  settlor,  the  considera- 
tions would  be  equal.  In  such  cases  the  court  referred  it  to 
a  master  to  report  whether  they  had  an  adequate  provision 

1  Ilolloway  r.  Ileadington,  8  Sim.  324 ;  Dillon  v.  Coppin,  4  My.  &  Cr. 
646  ;  Jefferys  v.  Jeffreys,  1  Cr.  &  Ph.  138. 

2  Moore  p.  Crofton,  3  Jou.  &  La.  442. 

'  Antrobua  v.  Smith,  12  Ves.  46;  Holloway  v.  Ileadington,  8  Sim. 325; 
Walrond  v.  Walrond,  1  Johns.  25.  And  see  Phillips  v.  Frye,  14  Allen, 
36 ;  White  v.  White,  52  X.  Y.  368. 

*  Bolton  V.  Bolton,  3  Swanst.  414,  note ;  Goring  v.  Xash,  3  Atk.  186 ; 
Finch  V.  Winchelsea,  1  P.  Wms.  277  ;  Garrard  v.  Lauderdale,  2  R.  &  M. 
154,  453.  But  see  Mackay  v.  Douglass,  L.  R.  14  Eq.  100  ;  Perrj-  Herrick 
V.  Attwood,  2  De  G.  &  J.  39  ;  Beal  r.  Warren,  2  Gray,  447. 

6  Bolton  V.  Bolton,  3  Swanst.  414. 
«  Ibid. 

7  Watts  V.  Bullas.  1  P.  Wms.  60;  Goring  i'.  Xash,  3  Atk.  186;  Rodgers 
V.  Marshall,  17  Ves.  294. 

119 


§  108.]  EXPRESS   TliUBTS,   ETC.  [cHAP.    III. 

independent  of  the  estate.^  But  at  the  present  day  in  Eng- 
land it  would  appear  that  even  as  against  volunteers  claim- 
ing under  the  settlor,  with  or  without  an  adequate  provision, 
a  voluntary  executory  agreement,  whether  under  seal  or  not, 
cannot  be  enforced  on  the  mere  ground  of  a  meritorious 
consideration.^ 

1  Goring  i'.  Xiish,  3  Atk.  186  ;  Rodgers  v.  Marshall,  17  Ves.  291. 

2  Price  V.  Price,  14  Beav.  598;  Colman  v.  Sarel,  1  Ves.  Jr.  50;  Jef- 
ferys  v.  Jefferys,  1  Cr.  &  Ph.  138  ;  Antrobus  v.  Smith,  12  Ves.  39;  Evelyn 
V.  Templar,  2  Bro.  Ch.  148 ;  IloUoway  v.  Ileadington,  8  Sm.  331  ;  Joyce 
V.  Hutton,  11  Ir.  Ch.  123;  Moore  v.  Crofton,  3  Jon.  &  La.  442. 

Mr.  Lewin  (p.  95  of  his  3d  ed.)  has  discussed  this  whole  matter  with 
a  fulness  that  leaves  little  to  be  said.  lie  says  :  "  It  has  also  been  sup- 
posed that  where  the  trust  is  imperfectly  created,  the  court,  without  proof 
of  valuable  consideration,  will  act  upon  a  meritorious  consideration,  as  the 
payment  of  debts  or  provision  for  wife  or  child.  The  covenant  to  stand 
seized  to  uses,  and  the  jurisdiction  of  the  court  in  supplying  surrenders 
and  aiding  the  defective  execution  of  powers,  have  generally  been  referred 
to  as  establishing,  or  at  least  countenancing,  this  doctrine. 

"  As  regards  the  covenant  to  stand  seized  to  uses,  it  is  evident  that 
mere  meritorious  consideration  was  not  a  sufficient  ground  to  attract  the 
jurisdiction  of  the  court;  for  no  use  would  have  arisen  in  favor  of  a  wife 
or  child  unless  there  had  been  a  covenant.  '  There  are  several  ways  in 
the  law,'  said  Lord  Justice  Holt,  'for  declaring  uses,  whether  upon  trans- 
mutation of  the  possession  or  not.  If  a  use  be  declared  upon  a  transmu- 
tation of  the  po.ssession,  as  in  a  fine  of  feoffment,  it  is  sufficient  for  the 
party  on  the  transmutation  to  dedare  that  the  use  shall  be  to  such  a  party 
of  such  an  estate ;  but  if  the  use  arise  without  transmutation  of  the  pos- 
session, the  use  then  does  not  arise  by  virtue  of  any  declaration  or 
appointment,  but  there  must  be  some  precedent  obligation  to  oblige  the 
party  declaring  the  use,  which  must  be  founded  on  some  consideration  j 
for  a  use,  having  its  foundation  generally  on  grounds  of  equity,  could  not 
be  relieved  in  chancery  without  transmutation  of  possession,  or  an  agree- 
ment founded  on  a  consideration  ;  and  therefore  if  bargain  and  sale  were 
made  of  a  man's  lands,  on  the  payment  of  the  money,  the  use  could  have 
arisen  without  deed  by  parol ;  but  if  the  use  was  in  consideration  of  bloody 
then  it  could  not  arise  by  parol  agreement  without  a  deed,  because  that  agree- 
ment was  not  an  obliging  agreement :  it  wanted  a  consideration,  and  therefore 
to  make  it  an  obliging  agreement,  there  tvas  necessity  of  a  deed.''  Jones  v. 
Morley,  12  Mod.  161. 

"  Thus,  if  equity  be  governed  by  the  strict  analogy  of  uses,  the  court 

cannot  act  upon  meritorious  consideration  where  the  contract  is  by  parol ; 

and  though,  where  the  agreement  is  under  seal,  the  argument  of  analogy 

applies,  yet  it  follows  not  that  equity  will  now  raise  a  trust  because  for- 

120 


CIIAJ'.    III.]  VOLUXTAUY    SETTLEMENTS.  [§  109. 

§  109.    The  tendency  in  the   United  States  is  to  sustain 
and  carry  into  effect  un  executory  trust  in  favor  of  a  wife 

inerly  it  would  liave  created  a  use.  A  bargain  and  sale  for  5s.  consider- 
ation still  operates  by  way  of  conveyance  to  transfer  the  estate  ;  but 
should  the  bargain  and  sale  be  void  as  such  for  want  of  an  indenture  or 
an  indenture  duly  enrolled,  it  could  not  be  argued  that  the  agreement  at 
the  present  day  would  be  specifically  executed  upon  the  basis  of  a  trust. 
It  may  further  be  remarked  that  if  the  covenant  to  stand  seized  to  uses 
were  now  to  regulate  the  administration  of  trusts,  there  would  still  be  no 
ground  fur  extending  the  relief  to  creditors,  who,  however,  it  is  admitted 
on  all  hands,  are  equally  entitled  to  the  benefit  of  meritorious  consider- 
ation. And  the  covenant  to  stand  seized  to  uses  extended,  we  must  re- 
member, not  only  to  wife  and  child,  but  also  to  brothers,  nephews,  and 
cousins ;  but  no  one  at  the  present  day  would  think  of  admitting  the  same 
latitude  in  the  execution  of  a  trust. 

*'  "With  respect  to  the  jurisdiction  of  the  court  in  supplying  surrenders 
of  copyholds,  the  principle  upon  which  the  relief  is  founded  appears  to  be 
this,  that  as  the  heir  was  never  meant  by  the  law  to  take  otherwise  than 
in  default  of  the  ancestor's  will,  if  the  ancestor  manifests  any  intention 
in  favor  of  a  meritorious  object,  the  court  will  not  suffer  the  mere  want  of 
form  to  carry  a  benefit  to  the  representative.  '  I  have  looked,'  said  Lord 
Alvanley,  *  at  all  the  cases  I  can  find  uj)on  what  principle  this  court  goes 
in  supplying  the  defect.  It  is  this:  whenever  a  man  having  power  over 
an  estate,  whether  ownership  or  not,  in  discharge  of  moral  or  natural 
obligation,  shows  an  intention  to  execute  such  power,  the  court  will  oper- 
ate upon  the  conscience  of  the  heir  to  make  him  perfect  this  intention. 
This  is  not  to  be  confounded  with  the  case  of  the  heirs  being  disinherited 
by  a  will  of  freeholds  not  duly  executed:  there  is  no  will  at  all.  The  court 
cannot  see  that  there  is  such  an  instrument;  but  whenever  there  is  such  a 
power,  it  has  been  executed.'  Chapman  v.  Gibson,  3  Bro.  Ch.  230.  And 
see  Ellis  v.  Nimmo,  Lloyd  &  Goold,  341. 

"  The  ground  upon  which  the  courts  aid  the  defective  execution  of  poicers 
will  be  found  upon  examination  to  be  precisely  that  upon  which  it  sup- 
plies the  surrender  of  copyholds.  The  power  to  the  extent  to  which  it 
may  be  exercised  is  regarded  in  equity  as  part  of  the  dominion,  —  as  a 
portion  of  the  actual  estate;  and  the  donee  of  it  is  pro  tanto  the  bond  fide 
owner  of  the  property,  and  the  person  taking  in  default  of  the  donee's 
disposition  is  a  quasi  heir.  Holmes  v.  Coghill,  Vl  Ves.  21o;  Coventry  v. 
Coventry,  at  the  end  of  Francis's  Maxims  in  Equity.  The  only  distinc- 
tion between  an  actual  heir  and  the  person  taking  in  default  of  the  power 
is  this:  that  the  former  is  so  constituted  by  course  of  law,  while  the  latter 
is  a  qucLsi  heir  specially  appointed  by  the  settlor.  Thus  in  aiding  the  de- 
fective execution  of  powers  the  court  says,  as  in  supplying  surrenders,  the 
donee  of  the  power,  who  is  the  owner  of  the  property  to  the  extent  of  that 

121 


§  109.]  EXPEESS   TRUSTS,   ETC.  [CHAP.   III. 

or  child  founded  upon  a  meritorious  consideration,  if  the 
instrument  is  under  scal,^  though  the  rule  is  not  fully  cstab- 

power,  has  indicated  an  intention  of  providing  for  a  meritorious  object, 
and  the  person  taking  in  default  of  the  power,  who  is  a  kind  of  heir,  shall 
not,  tlirough  want  of  form,  run  away  with  the  estate  from  those  who  are 
much  better  entitled. 

"It  is  clear  that  an  agreement  founded  on  meritorious  consideration 
will  not  be  executed  as  against  the  settlor  himself.  Antrobus  v.  Smith, 
12  Ves.  39.  Indeed,  relief  in  such  a  case  would  offend  against  the  security 
of  property ;  for  if  a  man  improvidently  bind  himself  by  a  complete  aliena- 
tion, the  court  will  not  unloose  the  fetters  he  hath  put  upon  himself,  but 
he  must  lie  down  under  his  own  folly.  Villers  v.  Beaumont,  1  Vern.  101; 
but  if  the  court  interpose  where  the  act  is  left  incomplete,  what  is  it  but 


1  Stone  V.  Stone,  L.  R.  5  Ch.  74 ;  Shepherd  v.  Bevin,  4  Md.  Ch.  133; 
9  Gill,  32;  Harris  r.  Haines,  6  Md.  435;  Mclntire  v.  Hughes,  4  Bibb,  ISO; 
Mahan  v.  Mahan,  7  B.  Mon.  579;  Bright  v.  Bright,  8  id.  194;  Dennison 
V.  Goehring,  7  Barr,  175;  Hayes  v.  Kershaw,  1  Sand.  258;  Taylor  v. 
James,  4  Des.  6;  Caldwell  v.  Williams,  1  Bailey  Eq.  175;  Garner  v.  Gar- 
ner, 1  Busb.  Eq.  1;  Jones  v.  Obinchain,  10  Grat.  259;  Harvey  v.  Alexau- 
der,  1  Rand.  219;  Blackely  v,  Ilolton,  5  Dana,  520;  2  Spence,  Eq.  Jur. 
58;  Pennington  v.  Gitting,  2  Gill  &  J.  208;  Tolar  u.  Tolar,  Dev.  Ch.  451; 
Thompson  v.  Thompson,  2  How.  (Miss.)  737;  Woodson  v.  McClelland, 

4  IMiss.  495.     But  see  Taylor  v.  Taylor,  2  Humph.  597 ;  Martin  v.  Ramsey, 

5  Humph.  349 ;  Campbell's  Estate,  7  Barr,  101 ;  Kennedy  v.  Ware,  1  Barr, 
445;  Cressman's  App.  42  Penn.  St.  155;  Bunn  v.  Wiiithrop,  1  Johns.  Ch. 
329.  The  above  cases  of  Mclntire  v.  Hughes,  Mahan  v.  Mahan,  and  Bright 
V.  Bright,  are  direct  decisions  upon  the  point,  and  fully  establish  the  rule 
for  the  State  of  Kentucky,  while  the  cases  of  Bunn  v.  AVinthrop,  Denni- 
son V.  Goehring,  Jones  v.  Obinchain,  and  most  of  the  other  cases,  pre- 
sented a  completely  executed  trust  for  enforcement,  and  the  court  was  not 
called  upon  to  decide  whether  a  meritorious  consideration  alone  would 
support  an  executory  trust.  In  Hayes  v.  Kershaw,  the  settlement  was 
for  a  collateral  relative,  and  the  Vice-Chancellor  declined  to  supjiort  it,  but 
intimated  in  strong  language  that  an  executory  trust  for  a  wife  or  child 
would  be  supported  upon  meritorious  consideration  merely.  The  cases 
are  very  fully  commented  upon  by  the  learned  editors  to  1  Lead.  Cas.  in 
Eq.  330-333,  with  a  strong  leaning  to  the  opinion  that  voluntaiy  execu- 
tory trusts  for  a  wife  or  child  would  be  supported.  The  learned  editors 
also  express  strong  doubts  whether  the  case  of  Ellis  v.  Nimmo,  1  Lloyd  & 
Goold,  333,  is  overruled  by  the  cases  which  are  usually  thought  to  overrule 
it;  and  their  criticism  is  ingenious  and  acute.  They  do  not,  however, 
advert  to  the  case  of  Moore  v.  Crofton,  3  Jon.  &  La.  442.  See  Cox  v. 
Sprigg,  6  Md.  274. 

122 


CIIAl'.   III.]  VOLUNTARY  SETTLEMENTS.  [§  109. 

lislicd,  and  perhaps,  upon  thorough  consideration,  would 
not  be  acted  upon.  But  the  rule  would  be  strictly  confined 
to  a  wife  and  child,  and  would  not  be  extended  to  brothers, 
sisters,  nephews,  or  parents,^  and  probably  not  to  grand- 
children,2  nor  to  illegitimate  children.^ 

to  wrest  property  from  a  person  who  has  not  legally  parted  with  it?  An- 
other observation  that  suggests  itself  is,  that  during  the  life  of  the  settlor 
the  ground  of  the  meritorious  consideration  scarcely  seems  to  apply ;  for 
can  it  be  thouglit  to  be  the  duty  of  a  husband  to  endow  his  wife,  during 
the  coverture,  with  a  separate  and  independent  provision?  or  is  a  parent 
bound  by  any  natural  or  moral  obligation  to  impoverish  himself  (for  such 
a  case  may  be  supposed)  for  the  purpose  of  enriching  a  child?  or  has  a 
court  of  equity  the  jurisdiction  to  appropriate  a  specific  fund  to  creditors, 
when  the  debtor  is  still  living?  the  presumption  of  law  is  that  the  creditor 
can  obtain  satisfaction  of  his  debt  by  the  usual  legal  process.  It  is  after 
the  decease  of  tlie  settlor  that  meritorious  consideration  becomes  such  a 
powerful  plea  in  a  court  of  equity.  The  wife  and  children  have  then  lost 
the  personal  support  of  the  husband  and  parent,  and  who  can  have  a  juster 
claim  to  the  inheritance  of  the  property  ?  The  creditor  is  then  barred, 
by  Act  of  God,  of  his  remedy  against  the  debtor ;  and  should  the  assets 
prove  InsufBcient,  how  but  by  the  assistance  of  equity  can  he  hope  to  bo 
satisfied  in  his  demand?  Another  objection  to  the  execution  of  a  volun- 
tary contract  against  the  settlor  himself,  at  least  in  respect  of  land,  is  the 
principle  expressed  by  Lord  Cowper,  that  equity,  like  nature,  will  do  noth- 
ing in  vain.  Seeley  v.  Jago,  1  P.  Wms.  389 ;  Billiugham  v.  Lawthen,  1  Ch. 
Cas.  243;  Pulvertoft  v.  Pulvertoft,  18  Ves.  99;  as  if  money  be  directed 
to  be  converted  into  land,  or  land  into  money,  the  devisee  or  legatee  may 
elect  to  take  the  property  in  the  original  state,  for  should  the  court  direct 
an  actual  conversion,  the  devisee  or  legatee  might  immediately  annul  the 
order  by  resorting  to  a  reconversion ;  and  so,  should  the  court  decree  a 
specific  performance  of  a  contract  regarding  realty  for  meritorious  con- 
sideration, the  property  the  next  moment  might  be  disposed  of  to  a  hond 
fide  purchaser,  and  the  settlement  become  nugatory.  Again,  if  the  imper- 
fect gift  can  be  enforced  against  the  settlor  himself,  then  the  equitable 
right  must  form  a  lien  upon  the  property;  and  upon  the  death  of  the  set- 
tlor his  heir  would,  in  all  events,  be  bound  to  convey :  but  even  in  aiding 
the  defective  execution  of  powers  and  supplying  surrenders  of  copyholds,  a 
previous  inquiry  by  the  master  is  invariably  directed  whether  the  heir  of 
the  settlor  has  any  other  adequate  provision." 

1  Downing  v.  Townsend,  Amb.  592;  Buford's  Heirs  v.  M'Kee,  1  Dana, 
107  ;  Hayes  v.  Kershaw,  1  Sand.  Ch.  258. 

2  Buford's  Heirs  v.  M'Kee,  1  Dana,  107. 

8  Fursaker  v.   Robinson,  Pr.  Ch.  475;   but  see   Buun  v.  Wiuthrop, 
1  Johns.  Ch.  329. 


§  111.]  EXPRESS   TRUSTS,   ETC.  [CHAP.   III. 

§  110.  Marriage  is  a  valuable  consideration,  therefore 
executory  agreements,  made  in  contemplation  of  marriage, 
will  be  enforced  if  the  marriage  actually  takes  place.  ^ 

§  111.  A  contract  under  seal  imports  a  consideration,  and 
an  action  at  law  can  be  maintained  upon  such  a  contract. 
And  it  has  sometimes  been  supposed  that  a  court  of  equity 
would  enforce  a  contract  in  favor  of  a  volunteer  whenever  an 
action  of  law  could  be  sustained  upon  the  instrument.^ 
But  equity  never  enforced  a  voluntary  covenant,  though 
under  seal,  to  stand  seized  to  the  uses  of  a  stranger;  and  it 
is  now  settled,  in  England,  that  equity  will  not  enforce  a 
voluntary  contract,  although  under  seal.^  Equity  will  not 
decree  the  specific  performance  of  a  contract,  where  a  court 
of  law  would  give  only  nominal  damages.  In  the  United 
States,  however,  considerable  stress  is  laid  upon  the  solem- 
nity of  a  seal.  The  courts  say  that  they  will  not  execute  a 
voluntary  executory  agreement  unless  it  is  under  seal,* 
thereby  implying  that  an  executory  contract  under  seal  will 
be  enforced,  though  voluntary.  And  in  Kentucky,  where 
the  distinction  between  sealed  and  unsealed  instruments  is 
now  abolished,  a  voluntary  executory  contract  not  under 
seal  has  been  upheld.^     But  there  is  the  same  uncertainty 

1  Duval  V.  Getting,  Gill,  38;  Gough  v.  Crane,  3  Md.  Ch.  119;  Crane 
r.  Gough,  4  id.  316;  Hale  v.  Lamb,  2  Eden,  271;  Stone  v.  Stone,  L.  R. 
5  Ch.  74. 

2  Beard  v.  Nutthall,  1  Vern.  427;  Williamson  v.  Coddrington,  1  Yes. 
511;  Hervey  v.  Audland,  14  Sim.  531;  Husband  v.  Pollard  and  Randal  v. 
Randal,  2  P.  Wms.  467;  Vernon  w.  Vernon,  id.  594;   Goring  v.  Nash, 

3  Atk.  186 ;  Stephens  v.  Trueman,  1  Ves.  73 ;  Wiseman  v.  Roper,  1  Ch. 
R.  158. 

8  Hale  V.  Lamb,  2  Eden,  294;  Fursaker  v.  Robinson,  Pr.  Ch.  475; 
Evelyn  v.  Templar,  2  Bro.  Ch.  148;  Colman  v.  Sarel,  3  id.  12;  Jeiferys 
V.  Jefferys,  1  Cr.  &  Ph.  138;  Meek  v.  Kettlewell,  1  Hare,  464  ;  Fletchers. 
Fletcher,  4  id.  74;  Newton  v.  Askew,  11  Beav.  145;  Dillon  v.  Coppin, 

4  M.  &  Cr.  647;  Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  188;  Dening 
V.  Ware,  22  Beav.  184. 

*  Kennedy  v.  Ware,  1  Barr,  445 ;  Caldwell  v.  W^illiams,  1  Bailey,  Eq. 
175 ;  Dennison  v.  Goehring,  7  Barr,  175 ;  Mclntire  v.  Hughes,  4  Bibb, 
186. 

6  Mahan  v.  Mahan,  7  B.  Hon.  579. 

124 


CIIAl'.   III.]  VOLUNTAIiY   SETTLEMENTS.  [§llla. 

wlietlitT  a  seal  would  render  a  voluntary  executory  contract 
binding  in  equity,  as  there  is  whether  a  mere  meritorious 
consideration  will  enable  the  court  to  enforce  the  settlement. 
Generally,  in  America,  very  little  regard  is  paid  to  mere 
formalities,  and  a  seal  is  regarded  in  most  States  as  a  mere 
formality.  A  mere  scratch  or  scroll  of  the  pen  passes  for  a 
seal,  and  in  some  States  they  arc  abolished  altogether. 
Why  any  effect  should  be  given  to  a  form  that  has  ceased  to 
be  a  solemnity  would  be  hard  to  explain  on  principle,  and  is 
equally  uncertain  upon  the  authorities. 

§  111  rt.  By  the  construction  given  to  the  New  York 
statutes  a  trust  to  sell  land  for  the  benefit  of  creditors  and 
legatees  must  be  absolute  and  imperative  without  discretion 
in  the  trustee ;  and  a  trust  to  receive  rents  and  profits  is  not 
valid  if  there  is  no  direction  to  apply  them  to  the  use  of  any 
person  or  for  any  period.  ^ 

1  Cooke  V.  riatt,  98  N.  Y.  38,  39. 


125 


§  112.]  IMPLIED   TKUSTS.  [CHAP.    IV. 


CHAPTER   IV. 

IMPLIED    TRUSTS. 

§  112.     The  manner  iu  which  trusts  are  implied,  and  the  words  from  which 
they  are  implied. 

§  113.     Words  from  which  a  trust  will  not  be  implied. 
§§  114-116,     Rules  by  which  trusts  will  or  will  not  be  implied. 
§§  117, 118.     Implied  trusts  from  directions  as  to  the  maintenance  of  children  or 
others. 

§  119.     When  trusts  for  maintenance  are  not  implied. 

§  120.     Rules  that  govern  implied  trusts. 

§  121.     Trusts  arising  by  implication  from  the  provisions  of  a  will. 

§  122.     Implied  trusts  arising  from  contracts. 

§  123.     A  direction  to  employ  certain  persons  does  not  raise  an  implied  trust. 

§  112.  Implied  trusts  are  those  that  arise  when  trusts  are 
not  directly  or  expressly  declared  in  terms,  but  the  courts, 
from  the  whole  transaction  and  the  words  used,  imply  or 
infer  that  it  was  the  intention  of  the  parties  to  create  a 
trust.  ^  (a)  Courts  seek  for  the  intention  of  the  parties, 
however  informal  or  obscure  the  language  may  be ;  and  if  a 
trust  can  fairly  be  implied  from  the  language  used  as  the 
intention  of  the  parties,  the  intention  will  be  executed 
through  the  medium  of  a  trust.  Implied  trusts  may  arise 
out  of  agreements  and  settlements  inter  vivos^  where  there  is 

1  Lane  v.  Lane,  8  Allen,  350. 

2  Liddard  v.  Liddard,  28  Beav.  266. 

(o)  In  Gorrell  v.  Alspaugh,  120  division   of   implied  triists   as  dis- 

N.  C.  362,  366,  Douglas,  J.,  said:  tinguished  both  from  resulting  and 

"  Implied  trusts  are  either  resulting  constructive   trusts;    but   this   dis- 

or  constructive.     In  this  State   aU  tinction  does  not  seem  to  be  recog- 

implied    trusts    are    generally    de-  nized  in  this  State,  nor,  indeed,  in 

nominated    parol    trusts,   referring  the  Statute  of  Frauds  (29  Charles 

to  their  origin  and  nature  of  proof  IL,  ch.  3,  §  8),  -which  refers  to  a 

rather  than  their  incidents  and  re-  trust  '  arising  or  resulting  by  impli- 

sults.     Some  eminent  authorities,  as  cation  or  construction  of  law.'  " 
Lewin  and  Perry,  make  a  separate 
126 


CHAP.   IV.]  PRECATORY   WORDS.  [§  112. 

a  sufficient  consideration ;  but  they  more  frequently  arise 
from  the  construction  of  wills  where  a  consideration  is 
implied.  In  Pennsylvania,  such  words  as  "my  wish  is," 
"my  further  request  is,"  or  others  merely  expressive  of  a 
desire,  recommendation,  or  confidence,  arc  not  sufficient  to 
convert  a  devise  or  bequest  into  a  trust.  ^  But  the  general 
rule  is  that  if  a  testator  make  an  absolute  gift  to  one  person 
in  his  will,  and  accompany  the  gift  with  words  exjn-essing  a 
"belief, "2  " desire, "^  "will,"^  " request, "^  "will  and  de- 
sire;"^ or,  if  he  "will  and  declare,"'  "wish  and  request,"^ 
"wish  and  desire,"^  "entreat,"  ^"^  "most  heartily  beseech,  "^^ 
"order    and    direct, " ^^  ^^)     "authorize     and    empower, "^^ 

1  Hopkins  v.  Glunt,  111  Penn.  St.  287;  Bowlby  i;.  Thunder,  105  id. 
178;  Colton  v.  Coltou,  10  Sawyer,  325. 

2  Gary  v.  Gary,  2  Sch.  &  Le.  189  ;  Paul  v.  Gompton,  8  Ves.  380. 

*  Harding  v.  Glyn,  1  Atk.  469 ;  Mason  v.  Limbury,  and  Vernon  v. 
Vernon,  Amb.  4;  Trot  v.  Vernon,  8  Vin.  Abr.  72;  Pushman  v.  Filliter, 
3  Ve.s.  7;  Brest  v.  Offley,  1  Ch.  R.  246;  Bonser  v.  Kinnear,  2  Gif.  195; 
Gruwys  i\  Golman,  9  Ves.  319;  Shaw  v.  Lawless,  Lloyd  &  Goold,  154; 
5  CI.  &  Fin.  129 ;  Lloyd  &  Goold,  Tem.  Plunket,  559. 

4  Ealea  v.  England,  Pr.  Gh.  200;  Glowdsley  v.  Pelham,  1  Vern. 
411. 

6  Pierson  i'.  Garnet,  2  Bro.  Ch.  38,  226;  Eade  v.  Eade,  5  Mad.  118; 
Moriarty  v.  Martin,  3  Jr.  Ch.  26;  Bernard  v.  Minshull,  1  Johns.  276; 
Kuox  r.  Knox,  59  Wis.  172. 

«  Birch  V.  Wade,  3  Ves.  &  B.  198  ;  Forbes  v.  Ball,  3  Mer.  437. 

'  Gray  v.  Gray,  11  Jr.  Ch.  218. 

8  Foley  V.  Parry,  5  Sim.  139;  2  M.  &  K.  138;  Cook  i'.  Ellington,  6 
Jones,  Eq.  371. 

9  Liddard  v.  Liddard,  28  Beav.  266 ;  Cockrill  v.  Armstrong,  31  Ark. 
580. 

10  Prevost  v.  Clarke,  2  Mad.  458;  Meredith  v.  Heneage,  1  Sim.  543; 
Taylor  v.  George,  2  Ves.  &  B.  378. 
"  Meredith  v.  Heneage,  1  Sim.  553. 

12  Gary  v.  Gary,  2  Sch.  &  Le.  189  ;  White  v.  Briggs,  2  Phill.  583. 
18  Brown  v.  Higgs,  4  Ves.  708  ;  5  id.  495  ;  8  id.  5G1  ;  18  id.  192. 

(a)  Such  words  as  "order  "and    tion,   by   a  later  clause   in   a  will 
"  direct  "  are  now  treated  as  pj-ima    which  contains  them.     See  Gollister 
facie  mandatory  ;  they  are  impera-    v.  Fassitt,  39  N.  Y.  S.  800 ;  38  id. 
tive  words,  even  when  a  discretion    601. 
is  given,  as  to  the  mode  of  execu- 

127 


§  112.]  IMPLIED   TRUSTS.  [CHAP.   IV. 

"recommend,"^  "hope," 2  «do  not  doubt, "^  "be  well 
assured,"*  "confide,"^  "have  the  fullest  confidence,"^ 
"trust  and  confide,"^  "have  full  assurance  and  confident 
hope ;  "  ^  or,  if  he  make  the  gift  "  under  the  firm  conviction, "  ^ 
or  "  well  knowing ; "  ^^  or,  if  he  use  the  expression,  "  of  course 
the  legatee  will  give,""  or,  "in  consideration  that  the  lega- 
tee has  promised  to  give,"^^  —  jjj  these  and  similar  cases 
courts  will  consider  the  intention  of  the  testator  as  mani- 
festly implied,  and  they  will  carry  the  intention  into  effect 
by  declaring  the  donee  or  first  taker  to  be  a  trustee  for  those 
whom  the  donor  intended  to  benefit.  ^^  And  so  the  words, 
"it  is  my  wish,"^*  "it  is  my  wish  and  will,"^^  "having  con- 

1  Tibbits  V.  Tibbits,  Jac.  317;  19  Ves.  656;  Horwood  v.  AVest,  1  Sim 
&  St.  387 ;  Paul  v.  Compton,  8  Ves.  380 ;  Malim  v.  Keighley,  2  Ves.  Jr. 
333,  529;  Malim  v.  Barker,  3  Ves.  150 ;  Meredith  v.  Heneage,  1  Sim.  543; 
Kingston  v.  Lorton,  2  Hog.  166;  Cholmondeley  v.  Cholmondeley,  14  Sim. 
590;  Hart  v.  Tribe,  18  Beav.  215;  Meggison  v.  Moore,  2  Ves.  Jr.  630; 
Sale  V.  Moore,  1  Sim.  534 ;  Ex  parte  Payne,  2  Y.  &  Coll.  636 ;  Randal  v. 
Hearle,  1  Anst.  124  ;  Lefroy  v.  Flood,  4  Ir.  Ch.  1  ;  Cunliffe  v.  Cunliffe, 
Amb.  686,  distinguished  in  Pierson  v.  Garnet,  2  Bro.  Ch.  46  ;  Malim  v. 
Keighley,  2  Ves.  Jr.  333;  Pushman  v.  Filliter,  3  Ves.  7;  Webster  v. 
Morris,  66  Wis.  366. 

2  Harland  v.  Trigg,  1  Bro.  Ch.  142 ;  Paul  v.  Compton,  8  Ves.  380. 

8  Parsons  v.  Baker,  18  Ves.  476;  Taylor  v.  George,  2  Ves.  &  B.  378; 
Malone  v.  O'Connor,  Lloyd  &  Goold,  465 ;  Sale  v.  Moore,  1  Sim.  534. 

*  Macey  v.  Shurmer,  1  Atk.  389 ;  Anst.  520 ;  Ray  v.  Adams,  3  M.  & 
K.  237. 

fi  Griffiths  V.  Evans,  5  Beav.  241 ;  Shepherd  w.  Nottidge,  2  J.  &  H.  766. 

6  Shovelton  v.  Shovelton,  32  Beav.  143  ;  Wright  v.  Atkyns,  17  Ves. 
255;  19  id.  299  ;  G.  Cooper,  111;  T.  &  R.  143;  Webb  v.  Wools,  2  Sim. 
N.  s.  267  ;  Palmer  v.  Simmonds,  2  Dr.  225;  Warner  v.  Bates,  98  Mass.  274. 

'  Wood  V.  Cox,  1  Keen,  317  ;  2  My.  &  Cr.  684  ;  Pilkington  v.  Boughey, 
12  Sim.  114. 

8  Macnab  v.  Whitbread,  17  Beav.  299. 

9  Barnes  v.  Grant,  2  Jur.  (n.  s.)  1127  ;  26  L.  J.  Ch.  92. 

^°  Bardswell  v.  Bardswell,  9  Sim.  319 ;  Nowland  v.  Nelligan,  1  Bro.  Ch. 
489 ;  Briggs  v.  Penny,  3  Mac.  &  G.  546 ;  3  De  G.  &  Sm.  525. 

"  Robinson  v.  Smith,  6  Madd.  124;  Lechmere  v.  Lavie,  2  M.  &  K.  197. 
1*  Clifton  V.  Lombe,  Amb.  519. 

"  Warner  v.  Bates,  98  Mass.  276;  Lambe  v.  Eames,  L.  R.  10  Eq.  267. 
1*  Brunson  v.  Hunter,  2  Hill  Ch.  490. 
"  McRee's  Ad'r  v.  Means,  34  Ala.  349. 
128 


CHAP.    IV.]  PRECATORY   WORDS.  [§   112, 

fidence,"!  "I  desire  that  the  donee  should  appropriate  $50 
per  year, "2  "to  be  disposed  of  and  divided  amon<^  my  chil- 
dren," ^  "with  full  conlidcnce  that  they  will  dispose  of  such 
residue  among  our  brothers  and  sisters  according  to  their 
best  discretion,"*  "intrusting  to  her  the  education  and 
maintenance  of  his  children  out  of  the  profits  of  the  estate,"  ^ 
"  I  also  allow  my  son  to  give  her  a  support  off  my  plantation 
during  her  life,"^  were  held  to  create  trusts  in  favor  of  the 
parties  to  be  benefited.  And  so,  where  a  testator  gave  a  sum 
of  money  to  trustees  "to  pay  the  income  yearly  to  his  son 
for  the  support  of  himself  and  family,  and  the  education  of 
his  children,"  it  was  held  that  the  income  was  taken  in 
trust  by  the  son,  and  that  the  wife  and  children  could  enforce 
its    appropriation    in    part    for    their    support.'     "To    my 

1  Dresser  v.  Dresser,  46  Maine,  48 ;  Reid's  Ad'r  v.  Blackstone,  14  Grat. 
363. 

2  Ericksoii  v.  Willard,  1  N.  II.  217. 
8  Collins  V.  Carlisle,  7  B.  Mon.  14. 

4  Bull  V.  Bull,  8  Conn.  47. 

^  Lucas  V.  Lockhart,  10  Sm.  &  Mar.  466. 

*  Hunter  v.  Stembrid^e,  12  Ga.  192.  In  this  case  the  court  construed 
the  word  allow  as  expressive  of  an  intention  —  the  testator  being  an  illit- 
erate man  —  that  the  son  should  support  his  mother  out  of  the  property 
given  him,  and  that  an  absolute  charge  or  trust  was  implied. 

7  Cole  V.  Littlefield,  35  Maine,  439 ;  Wright  v.  Miller,  8  N.  Y.  9  ;  1  Sandf. 
103  ;  Whiting  v.  Whiting,  4  Gray,  240;  Chase  v.  Chase,  2  Allen,  101; 
Hadow  I'.  Iladow,  9  Sim.  438 ;  Jubber  v.  Jubber,  id.  503  ;  Longmore  v. 
Elcuni,  2  Y.  &  C.  Ch.  303;  Leach  v.  Leach,  13  Sim.  304;  Hart  v.  Tribe, 
19  Bcav.  149  ;  Raikes  v.  Ward,  1  Hare,  445 ;  Crockett  v.  Crockett,  2 
Phill.  555.  Technical  language  is  not  necessary  to  create  a  trust.  It  is 
enough  if  such  intention  is  apparent.  Thus  words  of  recommendation, 
request,  entreaty,  wish,  or  expectation,  addressed  to  a  devisee  or  legatee, 
will  make  him  a  trustee  for  those  persons  in  favor  of  whom  such  ex- 
pressions are  used  ;  provided  that,  from  tlie  construction  of  the  whole 
will,  such  is  the  apparent  intention  of  the  testatoi,  and  provided  that  he 
has  pointed  out  with  sufficient  clearness  and  certainty  both  the  subject- 
matter  and  the  object  of  the  trust.  Thus,  in  Massey  v.  Sherman,  Amb. 
520,  a  testator  devised  property  to  his  wdfe,  not  doubting  that  she  would 
dispose  of  the  same  to  and  among  his  children  as  she  should  please,  it 
was  held  to  be  a  trust  for  the  children.  See  also  Macey  v.  Shurmer, 
1  Atk.  389  ;  Wynne  v.  Hawkins,  1  Bro.  Ch.  179  ;  Parsons  t;.  Baker,  18 
Ves.  470  ;  Malone  v.  O'Connor,  2  Lloyd  &  Goold,  465.  And  in  Pierson  v. 
VOL.  I.  — 9  129 


§  112.]  IMPLIED    TRUSTS.  [CHAP.    IV. 

daughter  A.  I  give  [naming  certain  property]  for  the  sup- 
port of  my  daughter  C."  creates  a  trust.  ^ 

Garnet,  2  Bro.  Ch.  38,  226,  a  testator  gave  a  residue  to  A.,  with  his  dying 
request  that  if  A.  died  without  issue  he  would  dispose  of  it  in  a  certain 
manner  pointed  out ;  but  Lord  Kenyon  and  Lord  Thurlow  held  that,  in 
the  event,  a  trust  was  implied  and  created.  And  see  Re  O'Bierne,  1  Jon. 
&  La.  352.  And  so  in  Malim  v.  Keighley,  2  Ves.  Jr.  333,  359,  a  testator 
recommended  a  daughter,  to  whom  he  made  a  bequest,  to  dispose  of  it 
at  her  death  in  a  certain  manner,  and  it  was  held  to  create  a  trust. 
See  also  Paul  v.  Comptom,  8  Ves.  380 ;  Ford  v.  Fowler,  3  Beav.  146  ; 
Knott  V.  Cottee,  16  Beav.  77;  Cholmondeley  v.  Cholmondeley,  14  Sim. 
590.  But  in  ^leggison  v.  Moore,  2  Ves.  Jr.  630,  the  word  "  recommend,' 
under  the  peculiar  circumstances  of  the  case,  was  held  not  to  create  a 
trust ;  but  the  case  throws  no  particular  light  upon  the  principle.  In 
Bird  V.  Wade,  3  Ves.  &  B.  198,  2  Ves.  467,  the  testator  added  to  his 
bequest  of  a  part  of  his  property  that  it  was  his  will  and  desire  that 
the  bequest  be  left  entirely  to  her  disposal  among  such  of  her  relations  as 
she  may  think  proper.  The  devisee  having  died  without  disposing  of  the 
property,  it  was  held  to  be  a  trust  for  her  next  of  kin.  See  also  Brest  v. 
Offley,  1  Ch.  R.  246  ;  Harding  v.  Glyn,  1  Atk.  469;  Earl  of  Bute  i-.  Stuart, 
2  Eden,  87;  1  Bro.  P.  C.  Taml.  476;  Wright  v.  Atkyns,  19  Ves.  209; 
Cooper,  111 ;  Gary  v.  Gary,  2  Sch.  &  Lef.  173,  189  ;  Forbes  v.  Bale,  3  Mer. 
441 ;  Horwood  v.  West,  1  Sim.  &  St.  387. 

In  Prevost  v.  Clarke,  2  Madd.  458,  a  testatrix  gave  property  to  her 
daughter,  and  "entreated"  her  son-in-law,  husband  of  the  daughter,  if 
he  should  not  have  children  by  her  daughter  and  should  survive  her,  that 
he  would  leave  any  part  of  the  property  that  came  to  him  to  her  other 
children  and  grandchildren  at  his  decease.  These  words  were  held  to 
create  a  contingent  trust  for  her  other  children  and  grandchildren.  So  in 
Pilkington  v.  Boughey,  12  Sim.  114,  where  a  testator  recited  in  his  will 
that  he  had  purchased  an  estate  for  a  particular  purpose,  and  then  devised 
it  to  certain  individuals  in  trust,  and  '•  trusted  "  that  they  would  apply  it 
to  such  purposes  as  they  knew  he  would  most  approve  of,  it  was  held  to  be 
a  trust.  In  Foley  v.  Parry,  2  ]\Iy.  &  K.  138,  a  testator  gave  property  to 
his  wife  for  life,  the  remainder  to  his  nephew  for  life,  and  then  declared 
it  to  be  his  particular  wish  and  request  that  his  wife,  or  a  third  person, 
should  superintend  and  take  care  of  the  education  of  his  nephew;  and  it 
was  determined  that  there  was  a  trust  in  the  life-estate  given  to  the  widow 
to  maintain  and  educate  the  nephew  until  he  was  twenty-one.  See  also 
same  case  in  5  Sim.  138.  So  more  doubtful  expressions  have  been  held 
to  create  trusts:  as  "  I  desire  him  to  give,"  Mason  v.  Limbury,  cited 
Vernon  v.  Vernon,  Amb.  4;   "I  hereby  request,"  Nowlan  v.  Nelligan, 


1  BuflBinton  v.  Maxam,  140  Mass.  557. 
130 


CHAP.  IV.]  piiecatoi:y  words.  [§  113. 

§  113.    On  the  other  hand,  it  has  been  held  that  no  trust 
was  imi)licd  when  property  was  given  to  a  donee  connected 

1  Bro.  Ch.  489;  "I  empower  and  authorize  her  to  settle  and  di.spose  of 
the  estate  to  such  persons  as  she  shall  think  fit  by  her  will,  confiding  in 
her  not  to  alienate  the  estate  from  my  family,"  Griffiths  v.  Evans,  5  Beav. 
241  (see  also  Brook  v.  Brook,  3  Sm.  &  Gif .  280 ;  Alexander  v.  Alexander, 

2  Jur.  (n.  s.)  898;  "  I  advise  him  to  settle,"  Parker  v.  Bolton,  5  L.  J. 
(x.  s.)  Ch.  98;  "  My  last  wish,  my  dear  daughter,  is  that  you  do  give  my 
granddaughter  £1000,"  Ilinxman  v.  Poynder,  5  Sim.  546;  "  require  and 
entreat,"  Taylor  v.  George,  2  Ves.  &  B.  378 ;  "  trusting  that  he  will  preserve 
the  same,  so  that,  after  his  decease,  it  will  go  and  be  divided,"  etc..  Baker 
V.  Mosely,  12  Jur.  740  ;  "  under  the  conviction  that  he  will  dispose,"  etc., 
Barnes  v.  Grant,  26  L.  J.  Ch.  92,  2  Jur.  (n.  s.)  1127;  "to  apply  the 
same,"  Saulsbury  v.  Denton,  3  K.  &  J.  392;  "  the  other  children  may  be 
allowed  to  participate,"  etc.,  Liddard  v.  Liddard,  0  Jur.  (n.  s.)  459,  28 
Beav.  266.  As  before  said,  however,  such  expressions  will  not  create  a 
trust,  if  by  the  context  no  trust  is  intended  to  arise;  as  if  a  trust  is  at  one 
time  created,  but  by  a  codicil  is  revoked  on  account  of  the  inconvenience, 
and  there  is  a  direction  that  the  "  property  be  disposed  of  for  the  good  of 
the  family,"  Alexander  v.  Alexander,  2  Jur.  (x.  s.)  898.  The  question 
in  all  cases  is,  is  the  devisee  or  legatee  a  beneficiary  or  a  trustee  of  the 
gift  bestowed  upon  him  ;  and  that  depends  upon  the  intention  of  the  tes- 
tator. But  parol  evidence  of  the  intention  of  the  testator  cannot  be  intro- 
duced, Irvine  i\  Sullivan,  L.  R.  8  Eq.  673.  If  there  is  a  direct  trust,  there 
is  no  doubt ;  if  there  are  precatory  words,  then  it  remains  to  determine 
whether  there  is  an  imperative  trust,  or  whether  the  words  are  merely 
suggestions  to  guide  the  discretion  of  the  devisee  in  disposing  of  the 
property,  tlie  testator  having  implicit  confidence  and  reliance  in  him,  and 
leaving  him  the  sole  judge  whether  he  will  follow  the  suggestions  or  not. 
If  the  testator  supposed  that  he  was  creating  an  imperative  trust,  whether 
express  or  imperative  from  precatory  words,  a  trust  will  be  raised  because 
such  is  the  intention  ;  and  if  such  trust  fails  because  the  purposes  of  the 
trust  are  uncertain,  or  the  amount  of  the  property  of  the  trust  is  uncer- 
tain, or  for  any  other  reason,  it  will  still  be  a  trust ;  but  it  will  result  to 
the  heirs-at-law,  next  of  kin,  or  residuary  legatees.  See  post,  §§  15.'3-1G1. 
But  such  uncertainty  in  the  objects  of  the  trust,  or  in  the  persons  to 
be  benefited,  or  in  the  amount  of  the  property  to  be  subjected  to  the 
trust,  or  in  the  manner  of  applying  it,  are  facts  and  circumstances,  if 
they  exist  in  the  will  itself,  which  are  to  be  taken  into  consideration 
in  construing  it.  See  post,  §  116;  Barnard  r.  IMinshull,  1  Johns.  287, 
1  Jarm.  on  Wills,  359  (3d  Loud.  ed.).  There  is  also  another  considera- 
tion. If  there  is  an  absolute  gift  in  the  first  instance  to  the  donee, 
mere  precatory  words  will  not  in  general  annex  a  trust  to  the  gift :  as  in 
Meredith  v.  Heneage,  1  Sim.  542,  10  Price,  306,  the  bequest  was  to  the 

131 


§  113.]  IMPLIED   TKUSTS.  [CHAP.   IV. 

with   expression  of   kindness   and   good-will  towards  other 
persons,  as  with  a  hope  that  "he  would  continue  it  in  the 

donee,  "  unfettered  and  unlimited,"  followed  by  precatory  words,  and 
they  were  held  not  to  create  a  trust.  In  Bonser  v.  Kinnear,  2  Gif.  1D5, 
there  was  a  gift  to  the  wife  '■^  for  her  sole  use  and  benefit,  she  maintaining 
the  children;''''  it  was  held  to  be  a  trust,  the  words  implying  the  trust 
being  a  part  of  the  gift.  But  in  Wood  v.  Cox,  1  Keen,  317,  there  was  a 
gift  to  the  devisee  "  for  his  own  use  and  benefit,"  trusting  and  wholly 
confiding  in  his  honor  to  act  in  strict  conformity  to  the  testator's  wishes. 
There  were  some  other  circumstances,  and  Lord  Langdale  held  it  to  be 
an  implied  trust;  but  Lord  Cottenham  said  that,  to  make  the  devisee  a 
trustee,  the  words  "  for  his  own  use  and  benefit "  must  be  expunged  from 
the  will:  2  My.  &  Cr.  686;  and  see  the  judgment  in  the  case  of  Irvine  v. 
Sullivan,  L.  R.  8  Eq.  673.  In  Winch  v.  Brutton,  14  Sim.  379,  and  in 
Bardswell  v.  Bardswell,  9  id.  319,  there  were  gifts  to  the  use,  benefit, 
and  disposal,  absolutely  of  the  devisees,  "  nevertheless  earnestly  conjuring 
them"  to  dispose  of  them  in  a  certain  manner;  and  it  was  held  that, 
under  the  form  of  the  gifts  there,  there  were  no  trusts.  See  also  White 
V.  Briggs,  15  Sim.  38;  Fox  v.  Fox,  27  Beav.  301.  So  in  Johnson  v. 
Rowlands,  2  De  G.  &  S.,  a  gift  to  be  disposed  of  as  she  shall  think  proper, 
followed  by  a  recommendation,  was  held  not  to  create  a  trust.  The  case 
of  Williams  v.  Williams,  1  Sim.  (n.  s.)  358,  is  nearly  to  the  same  effect; 
and  see  Green  v.  Marsden,  1  Drew.  646.  In  some  of  these  cases  the  ele- 
ment of  uncertainty  enters  into  the  construction  :  see  Bardswell  v.  Bards- 
well, 14  Sim.  879;  Williams  v.  Williams,  1  Sim.  (n.  s.)  858;  Webb  w. 
Wools,  2  Sim.  (n.  s.)  267,  was  a  strong  case  in  this  respect.  The  gift 
was  to  the  wife,  her  executors,  administrators,  and  assigns,  "  to  and  for 
her  and  their  sole  use  and  benefit,  upon  the  fullest  trust  and  confidence 
that  she  will  dispose  of  the  same,"  &c.  It  was  said  that  to  allow  the 
latter  words  to  create  a  trust  would  be  to  counteract  the  former  words. 
In  other  cases  where  the  gift  was  in  nearly  the  same  words  but  "  in  full 
confidence  that  she  will  bestow  it,  on  her  decease,  to  my  children,"  &c., 
Le  Marchant  i'.  Le  Marchant,  L.  R.  18  Eq.  414;  Curnick  v.  Tucker, 
L.  R.  17  Eq.  820,  it  was  held  that  the  widow  took  a  life-estate,  with  a 
power  to  appoint  among  the  children :  Ware  v.  Mallard,  21  L.  J.  Ch.  355; 
16  Jur.  492;  Gully  v.  Cregoe,  24  Beav.  185.  If  the  words  of  gift  to  the 
■wife  may  be  construed  as  making  the  gift  to  her  sole  and  separate  use, 
independent  of  her  husband,  the  trust  may  be  sustained :  Cholmondeley 
V.  Cholmondeley,  14  Sim.  .590.  See  also  Stubbs  v.  Sargon,  2  Keen,  255, 
3  My.  &  Cr.  513;  but  see  Green  v.  Marsden,  1  Drew.  646.  If  the  expres- 
sions are  mere  statements  of  good-will  towards  other  persons,  a  trust  will 
not  be  implied:  Buggins  v.  Yeats,  8  Vin.  Ab.  72,  PL  27;  Sale  v.  Moore, 
1  Sim.  534;  Hoy  v.  Master,  6  Sim.  568;  Reeves  v.  Baker,  18  Beav.  372; 
Lechmere  v.  Lavie,  2  My.  &  K.  197;  Abraham  v.  Almon,  1  Russ.  509; 
132 


CHAP.   IV.]  PRECATORY   WORDS.  [§  113. 

family;"^  or,  with  a  request,  "to  distribute  it  among  such 
members  of  the  donee's  family"  as  he  should  deem  most 
deserving; 2  or,  "in  full  confidence  that  the  donee  would 
devise  it  to  such  heirs  of  the  testator's  father  as  she  might 
think  best  deserved  a  preference;"^  or  with  a  recommenda- 
tion that  the  donee  "would  consider  the  testator's  rela- 
tions;"* or,  where  the  recommendation  was  "to  consider 
certain  persons,"^  "to  be  kind  to  them,""  "to  remember 

Harland  v.  Trigg,  1  Bro.  Ch.  1 12 ;  Curtis  v.  Rippon,  5  Madd.  4-34.  But 
where  a  testator  gave  property  to  his  son,  and  ordered  him  to  take  care 
and  provide  for  his  daughter,  it  was  held  that  she  was  entitled  to  a  pro- 
vision: Broad  v.  Bevan,  1  Russ.  511,  n.  It  must  be  repeated,  that  in  many- 
cases  the  element  of  uncertainty  as  to  the  property  to  be  affected  by  the 
words  of  recommendation  has  entered  largely  into  the  construction  given 
to  wills  by  courts  ;  and  in  that,  as  in  most  other  circumstances  attending 
the  construction  of  a  will,  each  case  must  depend  upon  the  particular 
words  of  the  will  and  the  context  in  which  they  are  found.  See  Lefroy 
V.  Flood,  4  Ir.  Ch.  1,  12;  Wynne  v.  Hawkins,  1  Bro.  Ch.  179;  Ilorwood 
V.  West,  1  Sim.  &  St.  387;  Iluskisson  v.  Bridge,  15  Jur.  738;  Young  v. 
Martin,  2  Y.  &  C.  Ch.  582,  Ex  parte  Vajne,  id.  63G;  Knight  v.  Knight,  3 
Beav.  148;  Knight  v.  Boughton,  11  CI.  &  Fin.  513;  12  Beav.  312; 
Bonser  i-.  Kinnear,  2  Gif.  195;  Quayle  v.  Davidson,  12  Moore,  P.  C.  268; 
Maud  V.  Maud,  27  Beav.  615.  But  see  Malone  v.  O'Connor,  2  Lloyd  & 
Goold,  465.  Of  course,  if  no  trust  is  implied  from  the  words  of  recom- 
mendation used  in  the  will,  the  donee  takes  the  absolute  beneficial  as  well 
as  legal  interest  to  the  extent  to  which  it  is  limited.  Stubbs  v.  Sargon, 
2  Keen,  255;  3  My.  &  Cr.  507 ;  Gloucester  v.  Wood,  3  Hare,  131 ;  1  H.  L. 
Cas.  272;  Briggs  v.  Penny,  3  De  G.  &  S.  547 ;  3  Mac.  &  G.  546;  Fowler 
V.  Garlike,  1  R.  &  My.  232.  But  if  a  trust  is  intended,  but  it  is  so  un- 
certain that  it  cannot  be  executed,  it  will  result  to  the  heir  or  next  of 
kin,  or  residuary  legatee  or  devisee,  according  to  the  circumstances. 

1  Harland  v.  Trigg,  1  Bro.  Ch.  142  ;  Wright  ;;.  Atkyns,  19  Yes.  279  ; 
G.  Coop.  121  ;  Woods  v.  Woods,  1  M.  &  Cr.  401 ;  Parkinson's  Trust,  1 
Sim.  (n.  8.)  242 ;  Williams  v.  Williams,  id.  358.  See  also  White  v. 
Briggs,  2  Phill.  583 ;  Liley  v.  Hey,  1  Hare,  580. 

2  Green  v.  Marsden,  1  Drew.  64G. 

*  Meredith  v.  Ileneage,  1  Sim.  542;  and  see  Wright  v.  Atkyns,  G. 
Coop.  119  ;  Curnick  v.  Tucker,  L.  R.  17  Eq.  320. 

*  Sale  V.  Moore,  1  Sim.  534;  Macnab  v.  Whitbread,  17  Beav.  299; 
Wright  V.  Atkyns,  G.  Coop.  119. 

6  Ibid. ;  Hoy  v.  Master,  6  Sim.  568. 
^  Buggins  V.  Yates,  9  Mod.  122. 

133 


§  113.]  IMPLIED   TRUSTS.  [CHAP.   IV, 

tliem,"^  "to  do  justice  to  thein,"^  "to  make  ample  provision 
for  them,"^  "to  use  the  property  for  herself  and  her  chil- 
dren, and  to  remember  the  church  of  God  and  the  poor,"^ 
"  to  give  what  should  remain  at  his  death,  or  what  he  should 
die  seized  or  possessed  of,"^  or,  "to  hnally  appropriate  as 
he  pleases;"  with  a  recommendation  "to  divide  among  cer- 
tain persons, " *^  or,  "to  divide  and  dispose  of  the  savings,^ 
or  the  bulk  of  the  property ; "  ^  or,  where  the  testator  "  recom- 
mends, but  does  not  absolutely  enjoin; "^  or,  where  a 
testator  gave  all  his  property  to  his  wife  absolutely,  and  by 
a  codicil,  in  the  form  of  a  letter  to  her,  said  it  was  his  wish 
"  that  she  should  have  everything,  using  her  judgment  when 
to  dispose  of  it  among  her  children,  but  that  he  should  be 
unhappy  if  he  thought  that  any  one  not  of  her  family  should 
be  the  better  for  what  he  felt  confidence  she  would  so  well 
dispose  of;"^^  or,  where  everything  was  given  to  a  "wife  in 
the  fullest  trust  and  confidence  reposed  in  her  that  she  will 
dispose  of  the  same  for  the  joint  benefit  of  herself  and  my 
children,""  or  where  an  estate  was  given  to  a  wife,  "being 
fully  satisfied  that  she  will  dispose  of  the  same,  by  will  or 
otherwise,  in  a  fair  and  equitable  manner  to  our  united 
relatives,  bearing  in  mind  that  my  relatives  are  in   better 

1  Bardswell  v.  Bardswell,  9  Sim.  319. 

2  Le  Maitre  v.  Banuister,  Pr.  Ch.  200,  and  note ;  Pope  v.  Pope,  10 
Sim.  1. 

8  Winch  V.  Brutton,  14  Sim.  379;  Fox  v.  Fox,  27  Beav.  301. 

4  Curtis  V.  Pvippon,  5  Madd.  434. 

6  Sprange  v.  Barnard,  2  Bro.  Ch.  585;  Green  v.  Marsden,  1  Drew.  646  ; 
Pushman  v.  Filliter,  3  Ves.  7;  Wilson  v.  Major,  11  Ves.  205  ;  Eade  v. 
Eade,  5  Madd.  118  ;  Wynne  v.  Hawkins,  1  Bro.  Ch.  179;  Lechmere  v. 
Lavie,  2  M.  &  K.  197 ;  Bland  v.  Bland,  2  Cox,  349 ;  Att.  Gen.  v.  Hall, 
Fitzg.  314  ;  and  see  Meredith  v.  Heneage,  1  Sim.  542 ;  Tibbits  v.  Tibbits, 
19  Ves.  655;  Pope  v.  Pope,  10  Sim.  1. 

^  White  V.  Briggs,  15  Sim.  33. 

^  Cowman  v.  Harrison,  10  Hare,  234. 

8  Palmer  v.  Simmonds,  2  Drew.  221. 

9  Young  V.  Martin,  2  Y.  &  C.  Ch.  582. 

10  Williams  v.  Williams,  1  Sim.  (n.  s.)  358. 

"  Webbv.  Wools,  2  Sim.  (n.  s.)  2G7;  Byne  r.  Blackburn,  26  Beav. 
41. 

134 


CHAP.   IV.]  PRECATORY   WORDS.  [§  114. 

circumstances  than  hers ; "  ^  or,  where  all  the  testator's 
estate  was  given  to  his  wife,  recommending  her  "to  give  the 
same  to  his  children,  at  such  time  and  in  such  manner  as 
she  should  think  best;"^  or,  where  a  bequest  of  a  house  and 
an  annuity  was  made  to  a  niece,  for  the  sujjport  of  herself 
and  her  neidiews  and  nieces  whom  she  then  had  under  her 
care,  "and  of  such  other  persons  as  she  from  time  to  time 
might  wish  and  request  to  be  members  of  her  family  ;"3  or, 
where  property  was  given  to  a  daughter,  "to  be  hers  forever, 
to  be  disposed  of  as  she  may  think  proper  among  her  chil- 
dren and  grandchildren,  by  will  or  otherwise;"*  or  a  devise 
to  a  wife  of  all  a  testator's  property,  recommending  her  "to 
make  some  small  allowance,  at  her  convenience,  to  each  of 
his  brothers  and  sisters :  say,  SIOOO  to  each ; "  ^  or,  a  devise 
"of  the  use,  benefit,  and  profits,  to  a  wife  absolutely,  having 
full  confidence  that  she  will  leave  the  surplus  to  be  divided 
at  her  decease  justly  among  her  children;"^  or,  where  the 
testator  expressed  an  "earnest  hope  "  and  "particular  re- 
quest" that  "the  donee  would  give  the  property  to  some  one 
bearing  the  family  name.  "^  In  a  case  where  A.  gave  prop- 
erty to  B.  and  directed  that  his  daughter  should  reside  with 
and  be  maintained  by  B.,  and  she  resided  of  her  own  accord 
in  another  place,  it  was  held  that  there  was  no  implied  trust 
for  her  if  she  resided  in  another  place. ^ 

§  114.  It  is  an  easy  task  to  enumerate  cases  where  trusts 
have  been  implied  and  where  they  have  not  been  implied ; 
but  it  is  difficult  to  reconcile  all  the  decisions.  The  words 
"will,"  "wish,"  "request,"  "hope,"  "desire,"  "trust," 
"have   confidence,"    "recommend,"    "not    doubting,"    and 

1  Reeves  v.  Baker,  18  Beav.  372. 

2  Gilbert  v.  Chapin,  19  Conn.  351. 
8  Harper  i>.  Phelps,  21  Conn.  257. 

■*  Thompson  v.  ]\IcKisick,  3  Humph.  631. 
6  Ellis  V.  Ellis,  15  Ala.  296. 

"  Pennock's  Estate,  20  Pa.  St.  268 ;  reversing  Coate's  Appeal,  2  Barr, 
129,  and  McKonkey's  Appeal,  1  Harris,  253. 
'  Hood  r.  Oglander,  34  Beav.  513. 
8  Wilson  V.  Ball,  L.  R.  4  Ch.  581. 

135 


114.] 


IMPLIED   TRUSTS, 


[chap.    IV. 


other  similar  words  found  so  often  in  wills,  express  a  state  of 
mind  in  the  testator,  and  they  generally  operate  as  a  direct 
gift,  devise,  or  bequest ;  but  they  are  frequently  so  used  that 
it  is  doubtful  whether  they  are  absolute  directions,  or  mere 
suggestions  to  be  acted  on  or  not  according  to  the  discretion 
of  the  donee.  Every  case  must  depend  upon  the  construc- 
tion  of  the   particular  will  under   consideration. ^  (a)     The 

1  Negroes  v.  Palmer,  18  Md.   165  ;   Meggisoa  v.  Moore,  2  Ves.  Jr. 
633. 

(a)  In  Hill  v.  Hill,  [1897]  1  Q.  B. 
483,  486,  Lord  Esher,  M.  R.,  said: 
"  I  have  the  strongest  conviction 
that,  when  the  court  is  called  upon 
to  place  a  construction  upon  words 
spoken  or  written  for  the  purpose 
of  adjudicating  upon  them,  the  same 
rule  applies  in  courts  of  equity  as 
in  courts  of  law,  namely,  that  the 
words  must  have  their  ordinary  sig- 
nification, unless  in  the  particular 
case  there  is  something  which  obliges 
the  court  to  give  them  a  meaning 
other  than  their  ordinary  meaning. 
The  words  which  we  have  to  con- 
sider in  this  case  are  words  of  re- 
quest. Words  of  request  in  their 
ordinary  meaning  convey  a  mere 
request,  and  do  not  convey  a  legal 
obligation  of  any  kind  either  at 
law  or  in  equity.  But  in  any  par- 
ticular case  there  may  be  circum- 
stances which  would  oblige  the 
court  to  say  that  such  words  have 
a  meaning  beyond  their  ordinary 
meaning,  and  import  a  legal  obli- 
gation." Lord  St.  Leonards  in  his 
Law  of  Property,  p.  375,  says  :  "  It 
is  not  an  unwholesome  rule,  that  if 
a  testator  really  means  his  recom- 
mendation to  be  imperative,  he 
should  express  his  intention  in  a 
mandatory  form;  but  this  conclu- 
sion was  not  arrived  at  without  a 

136 


considerable  struggle."  The  recent 
authorities  tend  strongly  to  recog- 
nize this  rule.  In  Williams  v.  Wil- 
liams, [1897]  2  Ch.  12,  18,  Lindley, 
L.  J.,  said:  "In  each  case  the 
whole  will  must  be  looked  at  ;  and 
unless  it  appears  from  the  whole 
will  that  an  obligation  was  intended 
to  be  imposed,  no  obligation  will 
be  held  to  exist.  .  .  .  The  term 
'  precatory '  only  has  reference  to 
forms  of  expression.  Not  only  in 
wills  but  in  daily  life  an  expression 
may  be  imperative  in  its  real  mean- 
ing although  couched  in  language 
which  is  not  imperative  in  form. 
A  request  is  often  a  polite  form 
of  command.  ...  A  condition  of 
this  kind  is  enforceable  in  equity, 
and  need  not  amount  to  a  common- 
law  condition  involving  a  forfeit- 
ure." In  Colton  V.  Colton,  127  U.  S. 
300,  312,  Mr.  J.  Matthews  said: 
"  If  there  be  a  trust  sufficiently 
expressed  and  capable  of  enforce- 
ment by  a  court  of  equity,  it  does 
not  disparage,  much  less  defeat  it, 
to  call  it  '  precatory.'  The  ques- 
tion of  its  existence,  after  all,  de- 
pends upon  the  intention  of  the 
testator  as  expressed  by  the  words 
he  has  used,  according  to  their  nat- 
ural meaning,  modified  only  by  the 
context  and  the  situation  and  cir- 


CHAP.  IV.] 


PRECATORY    WORDS. 


[§  114. 


point  really  to  be  determined  in  all  these  cases  is  whether, 
looking  at  the  whole  context  of  the  will,  the  testator  in- 
tended to  impose  an  obligation  on  his  legatee  to  carry  his 
wishes  into  effect,  or  whether,  having  expressed  his  wishes, 
he  intended  to  leave  it  to  the  le^^atee  to  act  on  them  or  not 
at  his  discretion.  It  is  doubtful  if  there  exist  any  formula 
for  bringing  to  a  direct  test  the  question,  whether  words  of 
"request,"  "hope,"  or  "recommendation,"  are  or  are  not  to 


cumstances  of  the  testator  when  he 
used    them." 

The  statements  of  the  author  in 
tlie  text  {supra,  §§  112,  113),  apart 
from  the  qualifications  liere  stated, 
appear,  in  following  the  older  au- 
thorities, to  go  too  far  in  holding 
that  particular  words  in  a  will  cre- 
ated a  trust.  While  confidence,  if 
the  context  shows  that  a  trust  is 
intended,  may  make  a  trust,  yet  if, 
upon  construing  the  whole  will,  the 
confidence  is  merely  that  the  lega- 
tee will  do  what  is  riglit  in  dispos- 
ing of  the  property,  a  binding  trust 
is  not  imposed.  See  Jn.re  Adams 
and  Kensington  Vestry,  27  Ch.  D. 
394,  410;  In  re  Diggles,  39  Ch.  D. 
253;  Booth  v.  Booth,  [1894]  2  Ch. 
282;  In  re  Hamilton,  [1895]  2  Ch. 
370;  Atkinson  v.  Atkinson,  62  L.  T. 
735  ;  Hill  v.  Hill,  78  id.  103 ;  Adams 
V.  Lopdell,  25  L.  11.  Ir.  311;  Dex- 
ter V.  Kvans,  63  Conn.  58 ;  Bacon  v. 
Ransom,  139  Mass.  117;  Durant 
V.  Smith,  159  Mass.  229;  Aldrich 
V.  Aldrich,  172  Mass.  101  ;  Foose 
V.  Whitmore,  82  N.  Y.  405;  Clay  v. 
Wood,  153  N.  Y.  134;  In  re  Gard- 
ner, 140  N.  Y.  122 ;  Nunn  v.  O'Brien, 
83  Md.  198;  Pratt  v.  Trustees  (Md.), 
42  Atl.  51;  Boyle  v.  Boyle,  152 
Penn.  St  108  ;  Good  v.  Fichthorn, 
144  id.  287  ;    Eberhardt  v.  Perolin, 


49  N.  J.  Eq.  570 ;  Orth  v.  Orth,  145 
Ind.  184 ;  Stivers  v.  Gardner,  88 
Iowa,  307  ;  Bills  v.  Bills,  80  id.  269  ; 
Foster  v.  Willson  (X.  H.),  38  Atl. 
1003;  Murphy  v.  Carlin,  113  Mo. 
112  ;  Sale  v.  Thornberry,  86  Ky. 
266;  Arnold  v.  Arnold,  41  S.  C. 
291;  Hill  V.  Page  (Tenn.),  36  S. 
W.  735;  Harrison  v.  Harrison  (Va.), 
44  Am.  Dec.  3G.5,  and  note;  1  Ames 
on  Trusts  (2d  ed.)  93,  97,  notes; 
1  Jarman  on  Wills  (Bigelow's  6th 
ed.),  *356.  In  jNIussoorie  Bank  p. 
Raynor,  7  App.  Cas.  321,  uncer- 
taintj'  as  to  the  nature  and  amount 
of  tlie  property  given  over  was  held 
a  strong  indication  that  words  of 
desire  were  not  intended  to  be  im- 
perative. When  an  absolute  own- 
ership is  clearly  conferred,  a  trust 
will  not  be  inferred  ;  nor  can  a  trust 
be  implied  merely  from  the  words 
indicating  the  motives  which  in- 
duced the  gift.  Giles  v.  An.'slow, 
128  111.  187,  196;  Randall  v.  Ran- 
dall, 135  111.  398  ;  Bain  v.  Buff,  76 
\a..  371 ;  Seamonds  r.  Hodge,  36 
W.  Va.  304.  An  expressed  wish 
that  a  certain  payment  be  made, 
if  "convenient,"  as  it  does  not  de- 
pend upon  choice  or  discretion,  cre- 
ates a  trust.  Phillips  v.  Phillips, 
112  X.  Y.  197. 

137 


§  114.]  IMPLIED    TRUSTS.  [CIIAP.    IV. 

be  considered  obligatory.  ^     The  most  that  can  be  done  is  to 

1  Warner  v.  Bates,  98  Mass.  270 ;  Williams  v.  Williams,  1  Sim.  (n.  s.) 
358,  by  Sir  Knight  Bruce.  In  Wright  v.  Atkyns,  1  T.  &  R.  157,  Lord 
Eldon  said  that  in  order  to  determine  whether  the  words  create  a  trust  or 
not,  it  is  matter  of  observation,  —  first,  that  the  words  should  be  impera- 
tive ;  secondly,  that  the  subject  must  be  certain  ;  and  thirdly,  that  the 
object  must  be  as  certain  as  the  subject.  See  Wood  v.  Cox,  2  My.  &  Cr. 
684  ;  Pope  v.  Pope,  10  Sim.  1.  In  Knight  v.  Knight,  -i  Beav.  148,  Lord 
Langdale  said,  "  It  is  not  every  wish  or  expectation  which  a  testator  may 
express,  nor  every  act  which  he  may  wish  his  successors  to  do,  that  can  or 
ought  to  be  executed  and  enforced  as  a  trust ;  and  in  the  infinite  variety 
of  expressions  employed,  and  of  cases  which  arise,  there  is  often  the  great- 
est difficulty  in  determining  whether  the  act  desired  or  recommended  is  an 
act  which  the  testator  intended  to  be  executed  as  a  trust.  In  the  construc- 
tion of  wills  it  is  the  duty  of  the  court  to  give  effect  to  the  intention  of  the 
testator,  whenever  it  can  be  ascertained."  Then,  after  stating  that  in  de- 
creeing trusts  wills  have  been  made  rather  than  executed,  and  that  caution 
is  necessary,  his  lordship  goes  on  to  say,  "  that  as  a  general  rule  it  has 
been  laid  down  that  when  property  is  given  absolutely  to  any  person,  and 
the  same  person  is  by  the  giver,  who  has  power  to  command,  recom- 
mended or  entreated  or  wished  to  dispose  of  the  property  in  favor  of  an- 
other, the  recommendation  or  entreaty  or  wish  shall  be  held  to  create  a 
trust:  first,  if  the  words  are  so  used  that,  upon  the  whole,  they  ought  to 
be  construed  as  imperative;  secondly,  if  the  subject  of  the  wish  be  certain ; 
and,  thirdly,  if  the  objects  or  persons  intended  to  have  the  benefit  of  the 
recommendation  or  wish  be  also  certain."  Same  case  under  the  name  of 
Knight  V.  Boughton,  11  CI.  &  Fin.  518. 

The  learned  editors  to  Hill  on  Trustees,  p.  73  (4th  Am.  ed.),  have  ex- 
amined the  American  and  English  cases,  and  state  the  following  rules, 
which  seem  to  be  fairly  deducible  from  the  adjudged  cases :  — 

1.  Precatory  words  in  a  will,  equally  with  direct  fiduciary  expressions, 
will  create  a  trust;  the  wish  of  a  testator,  like  the  request  of  a  sovereign, 
is  equivalent  to  a  command. 

2.  Discretionary  expressions  which  leave  the  application  or  non-appli- 
cation of  the  subject  of  the  devise  to  the  objects  contemplated  by  the  tes- 
tator entirely  to  the  caprice  of  the  devisee,  will  prevent  a  trust  from 
attaching;  but  a  mere  discretion  in  regard  to  ihe  method  of  application 
of  the  subject,  or  the  selection  of  the  object,  will  not  be  inconsistent  with 
a  trust. 

3.  Precatory  words  will  not  be  construed  to  confer  an  absolute  gift  on 
the  first  taker,  merely  because  of  failure  or  uncertainty  in  the  object  or 
subject  of  the  devise. 

4.  But  failure  or  uncertainty  will  be  an  element  to  guide  the  court  in 
construing  words  of  doubtful  siguificancy  adversely  to  a  trust. 

138 


CHAP.    IV.]  PRECATORY   WORDS.  [§  115. 

state    a  few  general  rules   that  lead  to  the  construction  of 
particular  wills. 

§  115.  However  strong  the  language  of  recommendation 
or  request  may  be,  a  trust  will  not  be  implied  if  the  testator 
declare  that  such  is  not  his  intention,  as  if  he  declares  that 
the  gift  shall  be  "unfettered  or  unlimited,"  or  if  he  "recom- 
mends but  does  not  enjoin."^  And  so  a  trust  will  not  be 
implied  if  such  a  construction  of  the  jirecatory  words  would 
render  them  repugnant  to,  or  inconsistent  with,  other  parts 
of  the  same  instrument.^  If  construing  a  recommendation 
or  the  expression  of  a  wish  into  a  trust  would  contradict  in 
terms  the  preceding  bequest,  a  trust  will  not  be  implied.^ 
As  if  the  gift  is  absolute,  and  of  all  the  testator's  property, 
and  of  both  the  legal  and  equitable  interest  in  it,  words  of 
recommendation  will  not  cut  it  down  into  a  trust;  or,  in  the 
words  of  Kindersley,  V.  C,  "where  the  later  words  of  a 
sentence  in  a  will  go  to  cut  down  an  absolute  gift  contained 
in  the  first  part  of  a  sentence,  and  are  inconsistent  with 
such  gift,  the  court  will,  if  it  can,  give  effect  to  the  abso- 
lute gift."*  The  same  rule  was  stated  by  Lord  Cottenham 
thus :  "  Though '  recommendation  '  may  in  some  cases  amount 
to  a  direction  and  create  a  trust,  yet  that  being  o.  fiexihle 
term,  if  such  a  construction  of  it  be  inconsistent  w'ith  any 
positive  provision  in  the  w'ill,  it  is  to  be  considered  as  a 
recommendation  and  nothing  more.  "^  The  flexible  term 
must  give  way  to  the  inflexible,  if  the  two  cannot  stand 
together  as  they  are  expressed. 

1  Meredith  v.  Heneage,  1  Sim.  543 ;  10  Price.  230 ;  Hoy  v.  IMaster, 
6  Sim.  568 ;  Young  v.  Martin,  2  Y.  &  C.  Ch.  582 ;  Iluskisson  v.  Bridge, 
4  De  G.  &  Sra.  245;  Warner  v.  Bates,  98  Mass.  277;  "Whipple  i-.  Adam, 
1  Met.  444 ;  Eaton  v.  Witts,  L.  R.  4  Eq.  151 ;  Barrett  v.  Marsh,  12G  Mass.  213. 

2  Brunsou  v.  Hunter,  2  Hill,  Ch.  490;  Knott  v.  Cottee,  2  Phill.  192. 

8  Webb  V.  Wools,  2  Sim.  (n.  s.)  207;  Bardswell  v.  Bardswcll,  9  Sim. 
319. 

*■  Webb  ?).  Wools,  2  Sim.  (n.  s.)  267;  Van  Duyiie  v.  Van  Duyne,  1 
McCarter,  397. 

6  Knott  V.  Cottee,  2  Phill.  192;  Second,  etc.  Church  v.  Desbrow,  52 
Penn.  St.  210. 

139 


§  116.]  IMPLIED  TKUSTS.  [CHAP.   IV. 

§  116.  Again,  a  trust  will  not  be  implied  from  precatory 
words  where  it  would  be  impracticable  for  a  court  to  deal 
with  and  execute  it;  as  if  a  testator  should  devise  a  house 
to  his  wife,  and  express  a  wish  that  his  sister  should  live 
with  her,  for  the  sister  takes  no  interest  in  the  house,  and  a 
court  cannot  decree  two  persons  to  live  together. ^  So  where 
a  testator  devised  a  dwelling-house  and  an  annuity  to  a 
niece,  for  the  support  of  herself  and  her  nephews  and  nieces 
then  living  with  her,  and  of  such  other  persons  as  she  from 
time  to  time  might  request  to  be  members  of  her  family. ^ 
Nor  will  a  trust  be  implied  if  there  is  uncertainty  as  to  the 
property  to  be  subjected  to  the  trust,  ^  or  as  to  the  persons  to 
be  benefited  by  the  trust, ^  or  as  to  the  manner  in  which  the 
property  is  to  be  applied.  Lord  Alvanley  stated  the  rule  to 
be  "that  a  trust  would  be  implied  only  where  the  testator 
points  out  the  objects,  the  property,  and  the  way  in  which 
it  shall  go. "  ^  If  the  subjects  and  objects  of  the  supposed 
trust  are  left  uncertain  by  a  testator,  the  court  will  infer 
that  no  obligation  was  intended  to  be  imposed  upon  the 
donee,  but  that  the  whole  disposition  was  left  to  his  dis- 

1  Graves  v.  Graves,  13  Ir.  Ch.  182  ;  Hood  v.  Oglander,  34  Beav.  513. 

2  Harper  v.  Phelps,  21  Conn.  257. 

3  Lechmere  v.  Lavie,  2  M.  &  K.  197;  Knight  v.  Knight,  3  Beav.  148; 
Meredith  v.  Heneage,  1  Sim.  556;  Buggins  v.  Yates,  9  Mod.  122;  Sale 
V.  Moore,  1  Sim.  534;  Anon.  8  Vin.  72;  Tibbits  v.  Tibbits,  19  Ves.  655; 
Wynne  i'.  Hawkins,  1  Bro.  Ch.  179 ;  Pierson  v.  Garnet,  2  id.  45,  230 ; 
Sprange  v.  Barnard,  id.  585;  Bland  i;.  Bland,  2  Cox,  349;  Le  Maitre  v. 
Bannister,  and  Eales  v.  England,  Pr.  Ch.  200 ;  Pushman  v.  Filliter,  3 
Ves.  7;  Att.  Gen.  v.  Hall,  Fitzg.  314;  Wilson  r.  Major,  11  Ves.  205; 
Eade  v,  Eade,  5  Madd.  118 ;  Curtis  v.  Rippon,  id.  434  ;  Russell  v.  Jack- 
son, 10  Hare,  218;  Knight  r.  Boughton,  11  CI.  &  Fin.  513;  Flint  v. 
Hughes,  6  Beav.  342;  Lines  v.  Darden,  5  Fla.  51. 

4  Harland  v.  Trigg,  1  Bro.  Ch.  142;  Wynne  v.  Hawkins,  id.  179;  Tib- 
bits V.  Tibbits,  19  Ves.  655 ;  Richardson  v.  Chapman,  1  Burns,  Ecc.  L. 
245 ;  Pierson  v.  Garnet,  2  Bro.  Ch.  4.5,  230  ;  Knight  c.  Knight,  3  Beav. 
148  ;  Sale  v.  Moore,  1  .Sim.  534  ;  Caiy  v.  Gary,  2  Sch.  &  Lef.  1S9  ;  Mere- 
dith v.  Heneage,  1  Sim.  542;  Ex  parte  Payne,  2  Y.  &  C.  Ch.  636;  Knight 
V.  Boughton,  11  CI.  &  Fin.  513  ;  Lines  v.  Darden,  5  Fla.  51. 

6  Malim  v.  Keighley,  2  Ves.  Jr.  335;  Knight  v.  Boughton,  11  CI.  & 
Fin.  548;  Warner  v.  Bates,  98  Mass.  277;  Whipple  v.  Adams,  1  Met. 
444. 

140 


CHAP.    IV.]  MAINTENANCE.  [§  117. 

crctioii.^  So  if  a  mere  power  to  appoint  is  given  to  the  first 
taker,  to  bo  exercised  or  not  at  his  discretion,  no  trust  will 
be  implied. 2  And  no  trust  will  be  implied,  if,  taking  the 
whole  instrument  and  all  the  circumstances  together,  it  is 
more  probable  than  otherwise  that  the  testator  intended  to 
communicate  a  discretion  and  not  an  oljligation.^ 

§  117.  There  is  another  variety  of  cases,  where  trusts  are 
sometimes  implied  from  the  words  used,  though  an  express 
trust  is  not  declared,  as  where  property  is  given  to  a  parent 
or  other  person  standing  in  the  relation  of  parent,  and  some 
directions  or  expressions  are  used  in  regard  to  the  mainte- 
nance of  his  family  or  children.  The  question  to  be  decided 
in  this  class  of  cases  is,  as  in  the  others,  did  the  settlor 
intend  to  create  a  trust  and  impose  an  obligation,  or  did  he 
merely  state  incidentally  the  motive  which  led  to  an  aljso- 
lute  gift  ?  *  In  the  following  cases  a  trust  was  clearly  implied 
by  the  court;  where  property  was  given,  that  "he  may  dis- 
pose thereof  for  the  benefit  of  himself  and  children,"^  or, 
"for  his  own  use  and  benefit,  and  the  maintenance  and 
education  of  his  children,"^  "for  the  maintenance  of  himself 
and  family,"'^  "for  the  purpose  of  raising,  clothing,  and 
educating"  the  children  of  the  legatee,^  "at  the  disposal  of 
the  legatee  for  herself  and  her  children,"^  or  "all  overplus 

1  INIorice  v.  Bishop  of  Durham,  10  Ves.  536. 

2  Brook  V.  Brook,  3  Sm.  &  Gif.  280;  Paul  v.  Compton,  8  Ves.  380; 
Howorth  V.  Dewell,  29  Beav.  18;  Lines  v.  Darden,  5  Fla.  51. 

8  Bull  V.  Hardy,  1  Ves.  Jr.  270;  Knott  v.  Cottee,  2  Phill.  192  ;  Knight 
V.  Knight,  3  Beav.  174;  11  CI.  &  Fin.  513;  Meggison  v.  Moore,  2  Ves.  Jr. 
630  ;  Hill  v.  Bishop,  &c.,  1  Atk.  618  ;  Paul  v.  Corapton,  8  Ves.  380 ;  Lefroy 
V.  Flood,  4  Ir.  Ch.  1 ;  Shepherd  v.  Nottidge,  2  Johns.  &  Ilera.  766. 

*  Paisley's  App.  70  Penn.  St.  158. 

^  Raikes  v.  Ward,  1  Hare,  445;  Whiting  v.  Whiting,  4  Gray,  240. 

«  Longman  v.  Elcum,  2  Y.  &  C.  Ch.  369;  Carr  v.  Living,  28  Beav.  644; 
Berry  v.  Briant,  2  Dr.  &  Sm.  1 ;  Bird  v.  Maybury,  33  Beav.  351 ;  Andrews 
V.  Bank  of  Cape  Ann,  3  Allen,  313. 

^  In  re  Ptobertson's  Trust,  6  W.  R.  405 ;  Whelan  r.  Reilly,  3  W.  Va. 
597;  Smith  /•.  AVildman,  37  Conn.  387. 

8  Rittgers  r.  Rittgers,  56  Iowa,  218. 

«  Crockett  v.  Crockett,  1  Hare,  451 ;  2  Phill.  461 ;  Bibby  v.  Thompson, 
32  Beav.  646. 

141 


§  117.]  IMPLIED    TRUSTS.  [CHAP.    IV. 

towards  her  support  and  her  family, "  ^  or  to  "  A.  for  the 
education  and  advancing  in  life  of  her  children.  "^  In 
Byne  v.  Blackburn,  it  was  held  that  the  fact  that  the  property 
was  given  to  a  trustee  instead  of  to  the  parent  was  sufficient 
to  show  that  no  sub-trust  was  intended;"  but  this  case  is  in 
conflict  with  other  cases;*  and  in  Chase  v.  Chase,  where 
property  was  given  to  trustees  "  to  pay  the  income  yearly  to 
a  son  for  the  support  of  himself  and  family  and  the  educa- 
tion of  his  children,"  it  was  held  that  the  income  was  taken 
in  trust  by  the  son  as  sub-trustee,  and  that  the  wife  and 
children  could  in  equity  enforce  its  appropriation  in  part 
for  their  support.^     Where  a  testator  gave  his  wife  the  entire 

^  Woods  V.  Woods,  1  M.  &  Cr.  401. 

2  Gilbert  v.  Bennett,  10  Sim.  371. 

8  Byne  r.  Blackburn,  26  Beav.  41. 

4  Gilbert  v.  Bennett,  10  Sim.  371 ;  Longman  v.  Elcum,  2  Y.  &  C.  Ch. 
363;  Carr  i'.  Living,  28  Beav.  644. 

6  Cole  V.  Littlefield,  35  Maine,  485;  Loring  v.  Loring,  100  Mass.  340; 
Wilson  V.  Bell,  L.  R.  4  Ch.  581 ;  Whiting  v.  Whiting,  4  Gray,  240;  Chase 
V.  Chase,  2  Allen,  101.  In  this  case  Chief-Justice  Bigelow  said:  "The 
intent  of  the  testator  to  give  the  benefit  of  the  income  of  the  trust  fund 
created  by  his  will  to  the  wife  and  children  of  his  son  Philip,  as  well  as 
to  his  son,  is  clear  and  unequivocal.  It  was  intended  for  their  joint  sup- 
port, and  for  the  education  of  the  children.  The  only  question  arising 
on  the  construction  of  the  will  is,  whether  the  income  of  the  trust  fund, 
when  received  by  the  son,  is  held  absolutely  by  bim  to  be  disposed  of  at 
his  discretion,  or  whether  he  takes  it  in  trust  so  that  the  wife  and  chil- 
dren can  seek  to  enforce  its  due  appropriation,  in  part  for  their  benefit, 
in  a  court  of  equity.  We  cannot  doubt  that  the  latter  is  the  true  con- 
struction ;  otherwise  it  would  be  in  the  power  of  the  son  to  defeat  the  pur- 
pose of  the  testator,  by  depriving  his  family  of  the  support  and  education 
which  was  expressly  provided  for  by  the  will.  The  adjudicated  cases 
recognize  the  rule  that  where  income  arising  from  property  is  left  to  a 
person  for  the  maintenance  of  children,  he  will  be  entitled  to  receive  it 
for  that  purpose  only  so  long  as  he  continues  properly  to  maintain  them. 
It  can  make  no  difference  in  the  application  of  the  principle,  that  the  per- 
son who  is  to  receive  the  income  also  takes  a  beneficial  interest  in  it  for 
his  own  support.  He  is  not  thereby  authorized  to  appropriate  the  whole 
of  it  to  his  own  use,  and  deprive  the  other  beneficiaries  of  the  share  to 
which  they  are  entitled.  Hadow  v.  Hadow,  9  Sim.  438  ;  Jubber  r.  Jubber, 
id.  503;  Longmore  v.  Elcum,  2  Y.  &  C  Ch.  363;  Leach  v.  Leach,  13 
Sim.  804 ;  Hart  v.  Tribe,  19  Beav.  149 ;  Raikes  v.  Ward,  1  Hare,  445 ; 
142 


CUAl'.   IV.]  MAINTENANCE.  [§  117. 

profit  of  his  estate  for  life,  "intrusting  to  her  the  education 
and  maintenance  of  his  children,"  and  also  providing  f(ji-  the 
education  and  maintenance  of  the  children  "out  of  the 
profits  "  of  the  estate,  it  was  held  that  the  widow  was  charged 
with  the  trust  of  educating  and  supporting  the  children;^ 
and  where  a  legacy  was  given  to  a  wife  to  be  applied  to  the 
maintenance  of  certain  jjcrsons  in  such  projjortions  and  at 
such  times  as  she  should  think  proper,  it  was  held  to  be  an 
imperative  trust.^  Where  a  testator  gave  to  his  wife  all 
his  personal  property  for  her  benefit  and  support  and  the 
benefit  of  his  son,  it  was  held  to  be  a  trust  in  the  widow, 
the  income  of  one-half  for  her  own  benefit  and  of  the  other 
half  for  the  support  of  the  son.^     A  trust  for  support  is  not 

Crockett  v.  Crockett,  2  Phill.  553."  See  Babbitt  v.  Babbitt,  26  N.  J. 
Eq.  44. 

^  Lucas  V.  Lockhart,  10  Sim.  &  Mar.  468.  See  also  Hunter  v.  Stem- 
bridge,  12  Ga.  192  ;  Withers  v.  Yeadon,  1  Rich.  Eq.  324. 

2  Hawley  v.  James,  5  Paige,  318. 

8  Loriiig  V.  Loring,  100  Mass.  340;  Jubber  v.  Jubber,  9  Sim.  503. 
When  a  testator  has  stated  the  motive  which  leads  to  the  gift,  the  inquiry 
arises,  is  the  motive  or  purpose  of  the  gift  so  stated  that  the  donee  is 
under  an  obligation  to  apply  the  gift,  or  any  part  of  it,  to  the  benefit  of 
another  person?  There  are  three  classes  of  cases:  (1)  When  a  complete 
and  obligatory  trust  is  created  in  the  first  donee;  as  a  gift  to  A.  "to  dis- 
pose of  among  her  children,"  or  for  bringing  up  her  children,  gives  no 
interest  to  A.,  but  creates  a  complete  trust.  Blakeney  v.  Blakeney,  6 
Sim.  52;  Pilcher  /•.  Randall,  9  Week.  R.  251 ;  Taylor  v.  Bacon,  8  Sim.  100; 
Chambers  v.  Atkins,  1  Sim.  &  St.  3->2;  Fowler  c.  Hunter,  3  Y.  &  Jer. 
506;  In  re  Comae's  Trust,  12  Jur.  470;  Barnes  v.  Grant,  26  L.  J.  Cb.  92; 
Jubber  v.  Jubber,  9  Sim.  503;  Wetherell  l'.  Wilson,  1  Keen,  80;  Wilson  v. 
IMaddison,  2  Y.  &  C.  Ch.  372  ;  Re  Harris,  7  Exch.  344  ;  Whiting  r.  Whit- 
ing, 4  Gray,  420;  Chase  v.  Chase,  2  Allen,  101  ;  Cole  v.  Littlefield,  35 
IVIaine,  439  ;  Wright  v.  ISIiller,  8  N.  Y.  9.  (2)  There  is  a  large  class  of 
cases  wh"re  the  first  donee  has  a  discretion  to  apply  a  part  or  the  whole  of 
the  gift  to  a  third  person.  This  discretion,  if  exercised  in  good  faith,  will 
not  be  interfered  with  by  the  court,  and  the  property  unapplied  by  the 
donee  will  belong  beneficially  to  him.  Thus  in  Hornby  v.  Gilbert,  Jac. 
351,  where  a  gift  was  made  to  A.,  to  be  laid  out  and  expended  by  her  at 
her  discretion,  for  or  towards  the  education  of  her  son,  and  that  she 
should  not  be  liable  to  account  to  her  son  or  any  other  person,  it  was  held 
that  the  property  belonged  to  her  beneficially,  subject  to  a  trust  to  apply 
a  part  to  the  education  of  the  son  during  his  minority.      And  so  where 

143 


§  117.]  IMPLIED   TRUSTS.  [CHAP.    IV. 

void  for  uncertainty,  as  the  amount  required  to  furnish 
maintenance  suitable  to  the  station  of  the  cestui  can  be 
ascertained  with  reasonable  certainty.^ 

income  is  given  for  life,  to  be  applied  to  the  education  and  maintenance 
of  children  in  the  discretion  of  the  donee,  the  income  must  be  paid  to  the 
person  named,  and  the  part  unexpended  belongs  to  such  person  benefi- 
cially. Gilbert  r.  Bennett,  10  Sim.  371;  Hadow  v.  Hadow,  9  Sim.  438; 
Leach  v.  Leach,  13  Sim.  304  ;  Brown  v.  Paul,  1  Sim.  (n.  s.)  92;  Bowden 
V.  Laing,  14  Sim.  113;  Longmore  v.  Elcum,  2  Y.  &  C.  Ch.  363.  And  if 
the  interest  or  income  of  legacies  to  the  children  is  given  to  a  parent,  to 
be  applied  to  the  maintenance  and  education  of  the  children,  the  parent 
will  take  the  surplus  beneficially  if  he  performs  his  duty,  unless  a  contrary 
intention  is  expressed:  and  providing  for  other  trustees  in  case  of  the 
parent's  death  does  not  mdicate  a  contrary  intention.  Brown  v.  Paul,  1 
Sim.  (n.  s.)  103.  Sometimes  the  gifts  to  a  parent  are  so  expressed  that 
the  parent  takes  the  property  in  trust,  subject  to  a  large  discretion ;  and 
sometimes  the  parent  takes  the  property  for  life,  subject  to  a  power  of 
appointment  for  the  children.  The  latter  construction  is  the  more  favored 
by  the  courts.  See  Crockett  i'.  Crockett,  2  Phill.  553;  Gully  v.  Cregoe,  24 
Beav.  185;  Hart  v.  Tribe,  18  Beav.  215;  Ware  v.  Mallard,  21  L.  J.  Ch. 
355,  16  Jur.  492.  In  Raikes  v.  Ward,  1  Hare,  445,  a  gift  was  made  to  a 
wife  "  to  the  intent  she  may  dispose  of  the  same  for  the  benefit  of  herself 
and  our  children  as  she  may  deem  most  advantageous,"  and  the  court 
determined  that  the  children  had  no  absolute  interest,  but  that  their  inter- 
ests were  subject  to  her  honest  discretion.  Connolly  v.  Farrell,  8  Beav. 
347;  Woods  c.  Woods,  1  My.  &  Cr.  401;  Costababie  v.  Costababie,  6 
Hare,  410;  Cowman  v.  Harrison,  10  Hare,  234;  Smith  v.  Smith,  2  Jur. 
(n.  s.)  967;  Cooper  v.  Thornton,  3  Bro.  Ch.  96;  Robinson  v.  Tickell,  8 
Ves.  142;  Wood  v.  Richardson,  4  Beav.  174;  Pratt  v.  Church,  id.  177. 
(.3j  The  third  class  of  cases  contains  those  in  which  it  is  held  that  the 
primary  donee  is  absolutely  entitled  to  the  whole  interest  given,  with- 
out any  rights  in  third  persons,  as  in  Brown  v.  Casamajor,  4  Ves.  498, 
where  a  legacy  was  given  to  a  father  "the  better  to  enable  him  to 
provide  for  his  children."  These  and  similar  words  merely  express 
the  motive  of  the  gift,  but  import  or  imply  no  obligation  or  discretion 
which  courts  can  enforce  or  control.  Hammond  v.  Neame,  1  Swanst.  35 ; 
Benson  v.  Whittam,  5  Sim.  22  ;  Thorp  v.  Owen,  2  Hare,  607 ;  Andrews 
V.  Partington,  3  Bro.  Ch.  60.  See  also  Biddies  v.  Biddies,  16  Sim.  1  ; 
Berkley  v.  Swinbourne,  6  Sim.  613  ;  Oakes  v.  Strachy,  13  Sim.  414  ;  Leigh 
V.  Leigh,  12  Jur.  907;  Jones  v.  Greatwood,  16  Beav.  528;  Hart  v.  Tribe, 
18  Beav.  215  ;   W^heeler  v.  Smith,  1  Gift.  300.     It   may  be  said  that 


1  Johnson  v.  Billups,  23  W.  Va.  685, 

144 


CHAP.    IV.]  MAINTENANCE.  [§  118. 

§  118.  In  cases  where  a  trust  for  the  maijitenance  of 
children  is  implied,  the  person  bound  by  the  trust  is 
regarded  in  the  same  light  as  the  guardian  of  a  lunatic  or  of 
a  minor  :^  he  is  entitled  to  receive  the  fund,  and  can  give  a 
valid  receipt  for  it;^  and,  so  long  as  he  discharges  the  trust 
imposed  upon  him,  he  is  entitled  to  the  surplus  for  his  own 
benefit,  nor  is  he  ol)liged  to  account  for  the  past  application 
of  the  fund. 3  And  the  future  application  is  very  much 
according  to  his  discretion,  provided  he  educates  and  sup- 
ports the  children  reasonably,  according  to  their  jjosition  in 
the  world  and  the  intention  of  the  testator.*  The  court,  in 
cases  where  a  question  is  raised,  will  order  payment  to  be 
made  to  him,  with  liberty  to  the  wife  and  children  to  apply 
for  further  orders;^  if  he  becomes  unfit  to  educate  the  chil- 
dren, the  court  can  apportion  the  fund,  and  prevent  him 
from  receiving  the  portion  necessary  for  the  children  and 
family;''  and  if  he  assigns  his  interest  in  the  fund,  the  court 
can  apportion  it,  and  set  apart  what  is  needed  for  the  sup- 
port and  education  of  the  children,  and  give  the  remainder 
to  his  assignee.^  Of  course,  if  there  arc  no  children,  or  if 
they  die,  the  person  bound  by  the  trust  takes  the  whole 
benefit  of  the  fund.^     But  if  the  devisee  die  before  the  chil- 

latterly  courts  are  not  so  astute  to  discover  and  enforce  trusts  from 
precatory  words,  and  arc  more  inclined  to  find  in  the  words  the  mere 
statement  of  a  motive,  or  the  vesting  of  a  discretion  in  the  donee. 

1  Jodrell  r.  Jodrell,  14  Beav.  411. 

2  Woods  r.  Woods,  1  M.  &  Cr.  409;  Raikes  v.  Ward,  1  Hare,  449; 
Cooper  V.  Thornton,  3  Bro.  Ch.  186;  Robinson  v.  Tickell,  8  Ves.  142  ; 
Crockett  v.  Crockett,  1  Hare,  451 ;  2  Phill.  553  ;  Webb  v.  Wools,  2  Sim. 
(n.  a.)  272. 

8  Leach  v.  Leach,  13  Sim.  304  ;  Brown  v.  Paul,  1  Sim.  (n.  s.)  92;  Carr 
V.  Living,  28  Beav.  644;  Mora  r.  Ilora,  33  Beav.  88;  Smith  r.  Smith,  11 
Allen,  423  ;  Berkley  i-.  Swinbourne,  6  Sim.  613;  Iladow  v.  Hadow,  9  Sim. 
438. 

*  Raikes  r.  Ward,  1  Hare,  450. 

^  Iladow  r.  Hadow,  9  Sim.  438 ;  Crockett  v.  Crockett,  1  Hare,  451. 

«  Chase  v.  Chase,  2  Allen,  101;  Castle  v.  Castle,  1  De  G.  &  Jon.  352. 

■^  Chase  r.  Chase,  2  Allen.  101  ;  Carr  v.  Living,  2  Beav.  044. 

8  Hammond  v.  Neame,  1  Swanst.  35  ;  Cape  r.  Cape,  2  Y.  &  C.  Ex.  543; 
Bushnell  y.  Parsons,  Pr.  Ch.  219;  Bowditch  v.  Andrew,  8  Allen,  339; 
Smith  r.  Smith,  11  Allen,  423. 

VOL.  I.  — 10  145 


§  118,]  IMPLIED   TRUSTS.  [CHAP,   IV. 

dren,  the  trust  remains  for  them.^  The  trust  also  ceases  as 
to  children  who  hccome  forisfamiliated,  or  cease  to  be  mem- 
bers of  the  trustee's  family,  and,  by  marriage  or  otherwise, 
become  members  of  another  home  or  establishment;  for  it 
would  not  generally  be  implied  that  a  testator  intended  ^  an 
income  for  the  support  and  education  of  his  family  to  be 
divided  up  into  as  many  families  as  he  left  children. ^ 
Whether  a  child's  right  to  maintenance  under  such  a  will 
ceases  by  the  fact  of  his  attaining  twenty-one  years  of  age  is 
in  many  cases  an  open  question.^  On  the  one  side  it  may 
be  said  that  the  trust  ought  not  to  continue  after  the  child  is 
of  age,  and  is  educated  and  prepared  to  acquire  a  livelihood 
for  himself.^  On  the  other  hand,  if  the  child  is  willing  to 
remain  at  home,  and  there  is  no  reasonable  objection  to  his 
so  remaining,  or  if  it  is  a  female  with  no  other  protection 
and  means  of  support,  it  would  seem  that  the  trust  ought 
not  to  cease  on  the  mere  ground  that  the  child  has  attained 
twenty-one.^  The  great  majority  of  cases  will,  of  course, 
depend  upon  the  particular  words  used  in  the  particular 
will,  and  they  will  be  so  construed  by  the  court  as  to  carry 
out  the  intentions  of  the  testator.'^  If  a  trust  is  to  a  widow 
for  life  for  the  support  of  herself  and  the  support  and 
education  of  her  children,  and  the  property  is  to  go  to  them 
absolutely  upon  her  death,  one  of  them,  on  coming  of  age, 
cannot  call  for  his  proportion,  even  with  the  concurrence  of 

1  Andrews  v.  Cape  Ann  Bank,  3  Allen,  313. 

2  Bowdoiu  V.  Laing,  14  Sim.  113;  Carr  v.  Living,  28  Beav.  644;  33 
Beav.  464;  Thorp  v.  Owen,  2  Hare,  612;  Longmore  v.  Elcum,  2  Y.  &  C. 
Ch.  370;  Manning  v.  Wopp,  2  Dev.  &  Bat.  Ch.  11  ;  Smith  v.  Wildman, 
37  Conn.  387  ;  Gardner  v.  Barker,  2  Eq.  R.  888,  overruling  Soames  v. 
Martin,  10  Sim.  287;  Bayne  v.  Crowther,  20  Beav.  400;  Brocklebank  v. 
Johnson.  29  Beav.  211;  Badham  v.  Mee,  1  R.  &  M.  631. 

3  Ibid.  ;  Baker  v.  Reel,  4  Dana,  158;  Conolly  v.  Farrell,  8  Beav.  350; 
citing  Camden  v.  Benson,  Crockett  v.  Crockett,  1  Hare,  457  ;  5  Hare,  .326. 

4  Ibid. 

5  McDonnell  v.  Black,  Riley,  Ch.  152. 

6  Ibid. ;  Cloud  v.  Martin,  2  Dev.  &  Bat.  Ch.  274  ;  Carr  v.  Living,  33 
Beav.  464. 

7  Gardner  v.  Barker,  18  Jur.  508 ;  Bowditch  v.  Andrew,  8  Allen,  339  ; 
Sargent  v.  Bourne,  6  Met.  32. 

146 


CHAP.    IV.]  MAINTENANCE.  [§  119. 

the  widow,  if  such  transfer  would  so  diminish  the  fund  as 
to  endanger  the  rights  of  the  other  children  to  support  and 
education  during  the  life  of  the  widow.  In  such  case  the 
court  has  ordered  a  part  of  such  child's  share  to  be  paid 
over  on  his  undertaking  to  account  for  the  income  if  needed, 
and  on  the  footing  that  the  residue  should  be  retained  for 
security,  that  the  income  should  l)e  i)aid  over  if  required.' 
The  children  have  such  an  interest  in  the  fund  given  for 
their  maintenance  that  it  cannot  be  reached  by  a  creditor's 
bill  or  trustee  process  against  the  parent  or  other  person 
charged  with  the  obligation  of  maintaining  the  children  or 
family;  that  is,  if  the  fund  is  given  to  a  person  for  a  par- 
ticular purpose,  it  cannot  be  diverted  from  that  purpose  by 
creditors  of  the  donee. ^ 

§  119.  But  no  trust  is  implied  where  the  words  simply 
state  the  motive  leading  to  the  gift,  as  where  the  gift  is  to  a 
person  "to  enable  him  to  maintain  the  children, "^  or  an 
absolute  gift  is  made,  and  the  motive  stated  "that  he  may 
support  himself  and  children,"*  or  a  gift  is  made  absolutely 
for  her  own  use  and  benefit,  "having  full  confidence  in  her 
sufficient  and  judicious  provision  for  the  children."^  When 
a  testator  gave  to  his  wife  "  the  use,  benefit,  and  profits  of 
his  real  estate  for  life,  and  all  his  personal  estate,  abso- 
lutely, having  full  confidence  that  she  will  leave  the  surplus 
to  be  divided  justly  among  my  children,"  it  was  held  that 
the  widow  took  the  personal  estate  absolutely  subject  to  no 
trust,  and  that  the  word  "surplus"  meant  what  was  left 
consumed  or  undisposed  of  by  her.^     And  it  may  be  added 

1  Berry  v.  Briant,  2  Dr.  &  Sm.  1. 

2  Bramhall  v.  Ferris,  14  N.  Y.  U ;  White  v.  White,  30  Vt.  342  ;  Rife 
V.  Geyer,  59  Pa.  St.  393 ;  Wells  v.  McCall,  64  Penn.  St.  207  ;  Clute  v.  Bool, 
8  Paige,  83;  Doswell  v.  Anderson,  1  P.  &  II.  (Va.)  185. 

8  Benson  v.  Whittam,  5  Sim.  22;  Leach  v.  Leach,  13  Sim.  304;  Burt 
r.  Ilenon,  66  Penn.  St.  400 ;  Rhettw.  Mason,  18  Grat.  541 ;  Burke  i-.  Val- 
entine, 52  Barb.  412. 

*  Thorp  V.  Owen,  2  Hare,  607. 

5  Fox  V.  Fox,  27  Beav.  301  ;  Sears  v.  Cunningham,  122  Ma.ss.  538  ; 
Barrett  v.  INIarsh,  126  Mass.  213. 

^  Pennock's   Estate,   20   Peun.   St.   268,  overruling  the   opinions  in 

1-47 


§  119.]  IMPLIED   TRUSTS.  [CHAP.   IV. 

that  the  mere  expression  of  a  purpose  for  which  a  gift  is 
made  docs  not  render  the  purpose  obligatory.  Even  if  the 
purpose  of  the  gift  was  to  benefit  the  donee  solely,  he  can 
claim  the  gift  without  applying  it  to  the  purpose  named, 
whether  the  expression  be  obligatory  in  form  or  not.  Thus 
if  a  gift  be  made  to  a  person  to  purchase  a  ring,i  or  an 
annuity,^  or  a  house,^  or  to  set  him  up  in  business,*  or  for 
his  maintenance  and  education, ^  or  to  bind  him  apprentice,^ 
or  towards  the  printing  of  a  book,  the  profits  of  which  to  be 
for  his  benefit,^  the  legatee  may  claim  the  money  without 
applying,  or  binding  himself  to  apply,  it  to  the  purpose 
specified,  even  although  there  is  an  express  declaration  that 
he  shall  not  otherwise  receive  the  money.  ^  These  cases  go 
upon  the  principle  that  a  court  of  equity  will  not  compel  a 
legatee  or  other  party  to  do  what  he  may  undo  the  next 
moment;  for  as  soon  as  such  party  has  received  his  ring, 
or  house,  or  annuity,  he  may  sell  it  or  give  up  his  busi- 
ness.^ And  where  money  is  given  to  trustees,  and  a  dis- 
cretion is  given  to  them  how  much  and  in  what  manner 
they  shall  apply  it,  the  cestui  que  trust  has  no  right  to  more 
than  the  trustees  see  fit  to  apply.  ^'^ 

Coate's  Appeal,  2  Barr,  129,  and  in  McKonkey's  Appeal,  1  Harris,  253; 
cases  upon  the  same  will  under  other  names.  And  see  Paisley's  App. 
70  Penn.  St.  158,  where  the  cases  are  discussed;  Willard's  App.,  15  P.  F. 
Smith,  265. 

1  Apreece  v.  Apreece,  1  Ves.  &  B.  364. 

2  Dawsou  V.  Hearne,  1  R.  &  My.  606;  Ford  v.  Battey,  17  Beav.  303; 
Be  Brown's  Will,  27  Beav.  324;  Yates  v.  Compton,  2  P.  Wms.  38. 

8  Knox  V.  Hotham,  15  Sim.  82.  ^  Gough  v.  Bult,  16  Sim.  45. 

5  Webb  V.  Kelley,  9  Sim.  472 ;  Young  Husband  r.  Gisborne,  1  Gall. 
400  ;  Presant  v.  Goodwin,  1  Sm.  &  Tr.  544;  Boyne  v.  Crowther,  20  Beav. 
400 ;  Twopenny  v.  Peyton,  10  Sim.  487. 

6  Barlow  y.  Grant,  1  Vern.  255;  Nevill  v.  Nevill,  2  Vern.  2-31  ;  Wool- 
dredge  V.  Stone,  4  L.  J.  (o.  s.)  Ch.  56;  Burton  v.  Cook,  5  Ves.  401  ;  Luke 
V.  Kelmorey,  T.  &  R.  207 ;  Att.-Gen.  v.  Haberdashers'  Co.,  1  My.  &  Keen, 
420;  Lewes  v.  Lewes,  16  Sim.  266  ;  Xoel  v.  Jones,  16  Sim.  309  ;  Lockhart 
V.  Hardy,  9  Beav.  379  ;  Lonsdale  v.  Berchtoldt,  3  K.  &  J.  185. 

7  Re  Skinner's  Trusts,  1  J.  &  H.  102. 

8  Stokes  V.  Cheek,  29  L.  J.  Ch.  922. 

9  1  Jarm.  on  Wills,  368  C3d  Lond.  ed.). 

i*"  In  re  Sanderson's  Trusts,  3  Kay  &  J,  497;  Beevor  v.  Partridge,  11 
148 


CHAR    IV.]  AGREEMENTS.  [§  121. 

§  120.  If  a  trust  is  im[)lied,  it  is  governed  in  some  respects 
by  rules  entirely  different  ironi  the  rules  that  govern  a  direct 
trust.  Generally  in  a  direct  trust  the  trustee  takes  no  bene- 
ficial interest  in  himself,  but  in  an  implied  trust  the  trustee 
may  take  the  whole  beneficial  interest  for  life,  with  a  right 
even  to  expend  some  part  of  the  principal  fund.  Thus,  where 
an  estate  was  devised  to  A.  and  her  heirs  in  the  fullest  confi- 
dence that  at  her  decease  she  would  devise  the  property  to 
the  heirs  of  the  testator,  Lord  Eldon  held  that  A.  hud  all  the 
rights  in  the  estate  of  a  tenant  for  life,  and  so  it  was  also  held 
in  the  House  of  Lords.^  But  where  a  testator  devised  an 
estate  to  his  wife  and  her  heirs,  under  the  firm  conviction 
that  she  would  dispose  of  and  manage  the  same  for  the  bene- 
fit of  her  children,  it  was  held  that  the  widow  was  not  entitled 
to  a  beneficial  interest  as  tenant  for  life.^ 

§  121.  Trusts  sometimes  arise  by  implication  from  the  pro- 
visions of  a  will,  in  order  to  carry  out  the  testator's  intention. 
As  where  a  testator  leaves  property  to  A.  wnth  the  request 
that  he  shall  leave  it  to  B.,  a  trust  in  favor  of  B.  is  created, 
which  is  not  affected  by  the  death  of  A.  before  the  testator.^ 
A  direction  to  continue  the  testator's  business  creates  a  trust.* 
So  where  a  testator  gave  his  wife  an  annuity  of  $1000  a  year, 
to  be  paid  her  by  a  trustee  named,  to  enable  her  to  live  com- 
fortably and  to  support  and  educate  her  children,  and  if  in 
any  year  said  sum  were  insufticient,  the  trustee  was  to  pay  her 
an  additional  sum  not  exceeding  $1000.  The  testator  gave 
a  few  legacies,  and  then  gave  the  remainder  of  his  estate  to 
his  daughters,  and  gave  nothing  to  the  trustee  in  words,  bat 
he  authorized  the  trustee  to  sell  certain  of  his  real  estate,  and 
also  to  sell  the  personal  property  not  specifically  devised. 
The  ])orsonal  property  was  only  sufficient  to  pay  the  debts  of 

Sim.  2J0;  Rudlaud  v.  Crozier,  2  De  G.  &  J.  143;  Cowper  v.  Mautell,  22 
Beav.  '2:n. 

1  Wrisjht  V.  Atkyns,  T.  &  R.  157;  Lawless  ».  Shaw,  Lloyd  &  Goold, 
SugdtMi,  151;  Shovelton  v.  Shovelton,  32  Beav.  143. 

2  Barnes  v.  Grant,  2  Jur.  (n.  s.)  1127. 

8  Eddy  V.  Ilartshore,  34  N.  J.  Eq.  409. 
*  Ferry  v.  Laible,  31  N.  J.  Eq.  566. 

149 


§  121.]  IMPLIED   TKUSTS.  [CHAP.    IV. 

the  testator,  and  the  trustee  had  no  funds  from  which  to  pay 
the  annuity  to  the  wife.  It  was  held  by  the  court  that  the 
trustee  took  the  real  estate  in  trust  by  implication,  that  the 
daughters  took  the  remainder  after  the  trusts  were  executed, 
and  that  the  widow  could  enforce  the  payment  of  the  annuity 
by  bill  in  equity  against  the  trustee.^  So  if  a  testator  direct 
his  real  estate  to  be  sold,  or  if  he  charge  it  with  the  payment 
of  debts  or  legacies,  it  may  descend  to  an  heir,  or  pass  to  a 
devisee,  but  the  court  will  consider  the  direction  as  an  im- 
plied declaration  of  trust,  and  enforce  its  execution  in  the 
hands  of  those  to  whom  it  has  come.^  So  a  condition  an- 
nexed to  a  devise  which,  being  broken,  might  work  a  for- 
feiture of  the  estate,  has  in  equity  been  construed  into  an 
implied  trust,  and  enforced  as  such ;  as  where  a  house  was 
devised  to  A.  for  life,  "  he  keeping  the  same  in  repair,"  or 
where  an  estate  is  given  to  one  in  fee,  "  he  paying  the  tes- 
tator's debts  within  a  year."  ^  Sometimes  it  is  very  difficult 
to  determine  whether  or  no  a  trust  ought  to  arise  by  implica- 
tion, as  where  there  is  an  absolute  devise  to  C.  and  conjoined 
therewith  expressions  indicating  a  trust  in  £.■*  Where  a  tes- 
tator gave  his  wife  a  life  estate  and  then  left  it  to  her  discre- 
tion to  give  such  aid  to  his  relations  as  she  might  deem  proper 
and  just  of  her  own  will,  it  was  held  that  there  was  no  suffi- 
cient expression  of  desire  to  create  a  trust,^  So  where  a  tes- 
tator gave  his  estate  to  his  daughter,  saying,  "  I  enjoin  upon 

1  Walker  v.  Whiting,  23  Pick.  313 ;  Braman  v.  Stiles,  2  Pick.  460  ; 
Fay  V.  Taft,  12  Cush.  448;  Watson  v.  Mayrant,  1  Rich.  Ch.  449;  Baker  v. 
Reel,  4  Dana,  158. 

2  Pitt  V.  Pelham,  2  Freem.  134 ;  1  Ch.  R.  283 ;  Locton  v.  Locton,  2 
Freem.  136;  Auby  u.  Doyl,  1  Ch.  Cas.  180;  Tennant  v.  Brown,  id.  180; 
Garfoot  v.  Garfoot,  id.  35 ;  2  Freem.  176  ;  Gwilliams  v.  Rowell,  Hard.  204 ; 
Blatch  V.  Wilder,  1  Atk.  420;  Carvill  v.  Carvill,  2  Ch.  R.  301;  Cook  v. 
Fountain,  3  Swanst.  529;  Bennett  v.  Davis,  2  P.  Wms.  318;  Wigg  v. 
Wigg,  1  Atk.  382  ;  Hoxie  v.  Hoxie,  7  Paige,  187;  Withers  v.  Yeadon,  1 
Rich.  Ch.  324 ;  IMcTntire  Poor  School  v.  Zan.  Canal  Co.,  9  Ham.  203. 

8  Wright  V.  Wilkin,  2  B.  &  Sm.  232;  Stanley  v.  Colt,  5  Wall.  119; 
Sohier  v.  Trinity  Church,  109  ISIass.  1  ;  Re  Skingley,  3  M.  &  Gor.  221; 
Gregg  V.  Coates,  23  Beav.  33.     And  see  Kingham  v.  Lee,  15  Sim.  396. 

4  Slater  v.  Hurlebut,  146  Mass.  308,  314. 

6  Corby  v.  Corby,  85  Mo.  371. 
150 


CHAP.   IV.]  AGREEMENTS.  [§  122. 

her  to  make  such  provision  for  my  grandchild  ...  in  such 
manner  and  at  such  times  and  in  sucli  amounts  as  she  may 
judge  to  he  expedient  and  conducive  to  the  welfare  of  said 
grandchild,  and  her  own  sense  of  justice  and  Christian  duty 
shall  dictate,"  it  was  held  that  there  was  no  trust.^  A  gift 
"relying"  on  the  donee  to  do  so  and  so  creates  no  trust.^ 
Giving  the  wife  the  use  or  proceeds  of  property  after  expenses 
are  paid,  and  providing  for  sale  and  distribution  after  her 
death,  creates  a  trust,  and  gives  the  wife  merely  a  life  right 
to  the  rents  and  profits.'^  An  executor  is  always  a  trustee  of 
the  personalty,  and  the  jurisdiction  of  equity  courts  over  trusts 
gives  them  a  right  to  construe  wills  whenever  necessary  to 
guide  a  trustee*  Wherever  the  duties  imposed  on  the  execu- 
tors are  active,  and  render  possession  of  the  estate  reasonably 
necessary,  they  will  be  deemed  trustees.^  But  merely  calling 
an  executor  "trustee"  in  a  will  which  creates  no  trust  estate 
or  duties  will  not  make  him  a  testamentary  trustee.^ 

§  122.  Again,  courts  of  equity  will  imply  a  trust  from  the 
contracts  of  parties,  although  there  are  no  words  of  trust  in  the 
instrument ; '  as  if  a  person  for  a  valuable  consideration  agrees 
to  settle  a  particular  estate  upon  another,^  or  if  he  agrees  to 
sell  an  estate  to  another,^  the  settlor  or  vendor  becomes  a  trus- 

^  Lawrence  v.  Cooke,  104  N.  Y.  632  ;  overruling  same  case  in  32  Ilun, 
126. 

2  Willets  V.  Willets,  35  Hun,  401. 

8  Hathaway  v.  Hathaway,  37  Hun,  265. 

*  Wager  v.  Wager,  89  N.  Y.  101. 

6  Ward  V.  Ward,  105  N.  Y.  68. 

«  In  re  Hawley,  104  N.  Y.  250. 

'  Taylor  v.  Pownal,  10  Leigh,  183. 

8  Finch  V.  Wiuchelsea,  1  P.  Wms.  277;  Freemoult  v.  Dedire,  id.  429; 
Kennedy  v.  Daley,  1  Sch.  &  Le.  355;  Legard  v.  Hodges,  1  Ves.  Jr.  477  ; 
3  Bro.  Ch.  531;  4  Bro.  Ch.  421;  Ravenshaw  r.  HoUier,  7  Sim.  3;  Welles- 
ley  V.  Wellosley,  4  M.  &  C.  561;  Mornington  v.  Keane,  2  De  G.  &  J.  293 ; 
Lyster  v.  Burroughs,  1  Dr.  &  W.  149;  Stock  v.  Uoyse,  12  Ir.  Ch.  246; 
Lewis  V.  IMadocks,  8  Ves.  150;  17  id.  48;  llowan  v.  Chute,  13  Ir.  Ch. 
169;  Re  McKenna,  13  Ir.  Ch.  239. 

9  Ackland  v.  Gaisford,  3  Madd.  32 ;  Wilson  v.  Clapham,  1  J.  &  W.  38 ; 
Ferguson  v.  Tadman,  1  Sim,  530  ;  Foster  v.  Deacon,  3  Madd.  394  ;  Paine 

151 


§  122.] 


IMPLIED    TRUSTS. 


[chap.    IV. 


tec  of  the  fee  for  the  purposes  of  the  settlement,  or  for  the  pur- 
chaser. Ante-nuptial  contracts  in  regulation  of  the  interest 
that  each  shall  have  in  the  property  of  the  other  then  owned  or 
suhsequently  to  be  acquired  are  favored,  and  will  be  enforced  by 
imposing  a  trust  on  the  property.^  (a)     A  note  given  by  one  to 

V.  Meller,  G  Ves.  349 ;  Harford  v.  Purrier,  1  Madd.  539 ;  Stent  v.  Bailis,  2 
P.  Wms.  220;  Minchin  v.  Nance,  4  Beav.  332;  Robertson  v.  Skelton,  12 
Beav.  2G0;  Paramore  v.  Greenslade,  1  Sm.  &  Gif.  541;  Revell  v.  Hussey, 
2  B.  &  B.  287;  Spurrier  v.  Hancock,  4  Ves.  6G7 ;  White  v.  Nutts,  1  P. 
Wms.  61 ;  Wall  v.  Bright,  1  J.  &  W.  494 ;  Tasker  v.  Small,  3  M.  &  Cr. 
70;  Pingree  v.  Coffin,  12  Gray,  288;  Reed  v.  Lukens,  44  Penn.  St.  200  ; 
Canning  v.  Kensworthy,  21  Ark.  9 ;  Currie  v.  White,  45  N.  Y.  822  ;  Wim- 
bish  V.  Montgomery  Mut.  Bldg.  &  Loan  Assoc.  69  Ala.  578 ;  Ricker  v. 
Moore,  77  Maine,  292 ;  Goodwin  v.  Rice,  26  Minn,  20 ;  Randall  v.  Cou- 
stans,  33  Minn.  329. 

1  Johnston  v.  Spicer,  107  N.  Y.  185. 


(a)  As  to  fraud  upon  marital 
rights,  see  Ilinkle  v.  Landis,  131 
Penn.  St.  573 ;  Beere  v.  Beere,  79 
Iowa,  555;  Nichols  v.  Nichols,  61 
Vt.  426;  Bliss  v.  West,  58  Hun,  71; 
Dudley  v.  Dudley,  76  Wis.  5G7  ; 
Alkire  v.  Alkire,  134  Ind.  350; 
Tyler  v.  Tyler,  126  111.  525 ;  Fere- 
bee  V.  Pritchard,  112  N.  C.  83; 
Murray  v.  Murray,  90  Ky.  1.  If  a 
•written  proposal,  in  consideration  of 
marriage,  to  leave  certain  defined 
real  estate  by  will  is  accepted,  and 
the  marriage  takes  place  on  the 
faith  thereof,  a  conveyance  of  that 
property  may  be  decreed,  after  the 
death  of  the  person  making  such 
proposal,  against  all  who  claim 
under  him  as  volunteers.  Synge  v. 
Synge,  [1894]  1  Q.  B.  46G.  See 
Thompson  v.  Tucker- Osborn,  111 
Mich.  470.  If  the  marriage  is  void 
because  the  woman's  first  husband 
proves  to  be  still  living,  the  heirs  of 
the  second  husband,  who  lived  with 
the  woman  as  his  wife  until  his 
152 


death,  cannot  in  equity  obtain  a 
reconveyance  of  property  which 
she  received  under  his  ante-nuptial 
contract.  Ogden  v.  McHugh,  167 
Mass.  276.  A  husband  who  seeks 
to  enforce  against  the  wife  an  ante- 
nuptial agreement  in  his  favor  will 
be  required  to  prove  complete  good 
faith  in  the  making  of  the  contract. 
Graham  v.  Graham,  143  N.  Y.  573. 
A  conveyance  by  a  man  about  to 
marry  of  a  reasonable  part  of  his 
estate  to  his  children  by  his  first 
wife  is  not  a  fraud  upon  the  second 
wife.  Kinne  v.  Webb,  54  Fed.  Rep. 
34.  In  Nance  v.  Nance,  84  Ala. 
375,  an  ante-nuptial  settlement  was 
held  not  voidable  by  creditors,  even 
though  the  husband  was  then  insol- 
vent and  intended  to  defraud  them, 
it  not  being  shown  that  the  wife 
knew  of  his  insolvency  and  fraudu- 
lent intention.  But  see  Flory  v. 
Houck,  186  Penn.  St.  263  ;  Ready 
V.  White,  168  111.  76.  Actual  fraud 
is  necessary  to  avoid  such  a  settle- 


CHAP.    IV.] 


AGREEMENTS. 


[§  122. 


his  wife  during  coverture  will  be  enforced  as  a  trust,  except  as 
against  creditors.^  In  case  of  a  savings  bank,  where,  after  pay- 
ment of  expenses,  the  entire  fund  and  its  accumulations  go  to 
the  depositors,  the  deposits  are  held  in  trust  for  the  depositors.^ 
Where  money  is  deposited  in  a  counnercial  bank,  no  trust  in 
general  arises,  but  only  a  relation  of  debt(jr  and  creditor  ;  when, 
however,  the  money  is  paid  into  bank  fur  a  specifie<l  purpose 
other  than  that  of  a  loan  to  the  bank,  a  fiduciary  relation  is 
created,  and  some  cases  go  so  far  as  to  hold  that  after  the  bank 
has  gone  into  insolvency,  money  so  paid  may  be  recovered 
from  the  assignee  in  preference  to  the  general  creditors.^  (a) 

1  Templeton  v.  Brown,  86  Tenn.  50. 

2  Johnson  v.  Ward,  2  Brad.  (111.)  261. 

*  See  Parsons's  edition  of  Morse  on  Banks  &  Banking,  §§  215,  565  c. 
See  Peak  v.  Ellicott,  30  Kans.  156  ;  Ellicott  v,  Barnes,  131  Ivans.  170. 
And  see  also  on  this  general  subject  Nat'l  Bank  v.  Ellicott,  31  Kans.  173. 


ment.  Clark  v.  McMahon,  170  Mass. 
91  ;  riussey  v.  Castle,  41  Cal.  239. 

In  an  article  upon  Irrevocable 
Trusts,  in  11  Jurid.  Rev.  55,  65, 
A.  M.  Hamilton,  Esq.,  says  of  the 
law  of  Scotland :  "  Of  the  obligatory 
and  irrevocable  nature  of  an  ante- 
nuptial contract  there  is  no  room  for 
doubt ;  but  a  post-nuptial  settlement 
admittedly  is  le.ss  onerous,  and  in 
certain  aspects  is  no  substitute  for 
an  ante-nuptial  contract.  On  this 
account  it  has  been  attempted  to 
treat  such  contracts  as  eipiivalent 
in  a  question  of  revocability  to  a 
voluntary  trust.  But  it  may  now 
be  considered  settled  that  while  in  a 
question  with  creditors  it  may  be 
right  to  do  so,  intra  fnmUiam  they 
have  all  the  force  of  ante-nuptial 
contracts.  A  unilateral  deed  may 
be  so  referred  to  in  a  marriage  con- 
tract as  to  become  a  part  of  it." 

(a)  In  order  to  hold  the  banker 
liable  for  a  breach  of  trust,  as  to 
money  deposited  with  him  by  a  trus- 


tee, there  must  have  been  a  misap- 
plication of  the  trust  funds,  to  which 
the  banker  is  privy  or  of  which  he 
has  notice,  and,  in  general,  it  must 
also  appear  that  there  was  some 
personal  benefit  to  the  banker  de- 
signed or  stipulated  for,  or  that  a 
special  deposit  was  made.  See 
Coleman  v.  Bucks  &  Oxon  Union 
Bank,  [1897]  2  Ch.  243,  248,  and 
cases  cited  :  Thomson  v.  Clydesdale 
Bank,  69  L.  T.  156  ;  Union  Bank 
V.  Murray- Aynsley,  [1898J  A.  C. 
693  ;  Li  re  Ulster  Building  Co.,  25 
L.  R.  Ir.  24  ;  ]\lanhattan  Bank  v. 
Walker,  130  U.  S.  267 ;  Kissam  v. 
Anderson,  145  U.  S.  435;  Phila- 
delphia Nat.  Bank  v.  Dowd,  38  F. 
R.  172 ;  Knight  i'.  Fisher,  58  id. 
991  ;  Cecil  Nat.  Bank  v.  Thurber, 
59  id.  913;  52  id.  513;  Montagu  v. 
Pacific  Bank,  81  id.  602;  Moreland 
V.  Brown,  86  id.  257;  Duckett  v. 
National  .M.  Bank,  86  Md.  400  ; 
Brooke  v.  King,  104  Iowa,  713; 
Smith  V.  Des  Moines  Nat.  Bank 
153 


§  123.]  IMPLIED    TRUSTS.  [CHAP.   IV. 

Where  the  plaintiff  placed  certain  money  in  the  hands  of  the 
intestate  to  be  repaid  to  him  on  her  death,  only  the  relation  of 
debtor  and  creditor  was  created,  and  the  plaintiff  could  not  be 
preferred  to  other  creditors.^ 

§  123.  A  direction  to  trustees  that  a  certain  person  shall 
be  employed  as  agent  and  manager  for  the  trustees  if  there 
should  be  occasion  for  such  services,  gives  no  interest  in  the 
estate  to  such  person,  nor  will  any  kind  of  trust  be  implied 
which  equity  can  enforce  ;''^  and  so  when  the  trustees  were 
recommended  to  employ  a  receiver.^ 


1  Kershaw  v.  Suowden,  36  Ohio  St.  183. 

2  Finden  v.  Stephens,  2  Phill.  142. 

8  Sliavv  V.  Lawless,  LI.  &  Goo.,  Sugden,  154;  5  CI.  &  Fin.  129  ;  LI.  & 
Goo.,  Plunket,  559.  In  Tibbits  v.  Tibbits,  19  Ves.  656,  a  testator  made 
a  devise  to  his  son,  recommending  him  to  continue  A.  &  B.  in  the  occu- 
pation of  their  respective  farms  so  long  as  they  managed  them  well ;  and 
it  was  held  to  create  a  trust  for  them.  And  see  Quayle  v.  Davidson,  12 
Moore  P.  C.  268.  In  Hibbert  v.  Hibbert,  3  Mer.  681,  a  testator  directed 
that  II.  should  be  appointed  receiver  of  his  estates  in  Jamaica,  adding 
that  he  intended  the  appointment  to  benefit  H.  in  a  pecuniary  point  of 
view  ;  and  it  was  held  that  H.  was  entitled  to  be  appointed  agent,  receiver, 
and  consignee  of  said  estates  without  giving  security.  And  so  when  a 
testator  appointed  an  auditor  with  a  remuneration,  it  was  held  that  the 
trustees  could  not  remove  him,  there  being  no  imputation  upon  his  con- 
duct.    Williams  v.  Corbet,  8  Sim.  349.     The  case  of  Shaw  v.  Lawless  was 

(Iowa),  78   N.    W.    238;    State   v.  deposits  which  it  accepts.     Gray  v. 

Midland  State   Bank,    52  Neb.    1  ;  Merriam,    148    111.    179.       By    the 

Portland  S.  Co.  v.  Dana,  172  Mass.  weight  of  authority,  in  the  absence 

417;  52  N.  E.  524.     If  trust-money  of  fraud,  the  collection  of  a  draft  or 

deposited  in  a  bank  is  withdrawn  by  check  by  a  bank  creates  the  relation 

the  trustee  for  his  own  use  with  the  of  debtor  and  creditor,  and  not  a 

bank's  knowledge,  the  trustee  can-  trust.     See  Hallam  v.   Tillinghast, 

not  sue  the  bank  to  recover  it  for  19  Wash.  20,  27,  and  cases  cited  : 

the  trust   estate,  though  the  ceslui  Little  v.  Chadwick,  151  ]\Iass.  109  ; 

que  trust  joins  with  him  in  the  suit.  Nonotuck   Silk   Co.  v.  Flanders,  87 

Munnerlyn  v.  Augusta  S.  Bank,  88  Wis.    237,    overruling    McLeod    v. 

Ga.  333;  94   Ga.  356.     A   bank  is  Evans,  66  Wis.  401 ;  Bruner  y.  First 

liable  for  the  loss  through  its  negli-  Nat.  Bank,  97  Teun.  540. 
gence  of  collateral  security  or  special 

154 


CHAP.   IV.]  AGREEMENTS.  [§  123. 

a  very  severely  contested  ease.  Mr.  Sugden,  Chancellor  for  Ireland,  was 
of  opinion  tliat  the  agent  was  entitled  to  the  place  ;  but  he  was  overruled, 
and  the  couclusion  arrived  at  stated  in  the  text.  From  the  cases  cited  in 
this  note  it  would  appear  that  the  question  is  not  entirely  settled  ;  or  it 
may  be  that  every  such  provision  must  depend  upon  the  words  and  inten- 
tion of  each  particular  will. 


155 


RESULTING   TRUSTS.  [CHAP.   V. 


CHAPTER  V. 

RESULTING     TRUSTS. 

§  124.     Creation  and  character  of  a  resulting  trust. 

§  125.     Divisions  of  this  kind  of  trust. 

§  126.  Resulting  trust  where  the  purchase-money  is  paid  by  one,  and  deed 

is  taken  to  another.     See  §  142. 
§  127.  Resulting  trust  where  trust  funds  are  used  to  purchase  property, 

and  title  taken  in  the  name  of  another. 
§  128.     In  what  cases  a  trust  results,  and  when  a  trust  does  not  result.     See 

§§  143,  156,  160. 
§  129.  When  a  person  uses  his  fiduciary  relation  to  obtain  an  interest  in, 

or  affecting  the  trust  property. 
§  130.  Same  rules  apply  to  personal  property  unless  it  is  of  a  perishable 

nature. 
§  131.  Where  a  resulting  trust  will  not  be  permitted  as  against  law. 

§  136.  No  resulting  trust  in  a  joint  purchase. 

§  132.     Rules  as  to  a  resulting  trust. 
§§  133,  134.     Time  and  circumstances  in  the  creation  of  a  resulting  trust. 

§  135.     Parol  evidence  as  to  a  purchase  by  an  agent  not  admissible. 
§§  137,  138.     Resulting  trusts  may  be  established  by  parol. 
§  139.  May  be  disproved  by  parol  —  the  burden  of  proof. 

§  140.  Cannot  be  changed  by  parol  after  they  arise. 

§  141.     Will  not  be  enforced  after  a  great  lapse  of  time. 
§  142.     Resulting  trusts  under  tlie  statutes  of  New  York  and  other  States. 
§  143.     A  resulting  trust  does  not  arise  if  the  title  is  taken  in  the  name  of  wife 

or  child. 
§  144.  What  persons  it  embraces. 

§  145.  Doubts  and  overruled  cases. 

§  146.  When  it  will  l)e  presumed  to  be  an  advancement. 

§  14".  The  presumption  may  be  rebutted. 

§  148.  Is  rebutted  by  fraud  in  the  wife  or  child. 

§  149.  Creditors  may  avoid  such  advancements.     When  and  how. 

§  150.     A  resulting  trust  from  the   conveyance  of  the  legal  title  without  the 

beneficial  interest. 
§  151.  Every  case  must  depend  upon  its  particular  writing  and  circum- 

stances. 
§  152.  Instances  and  illustrations. 

§§  153,  154.     If  there  is  an  intention  to  benefit  the  donee,  there  is  no  resulting 

trust. 
§  155.     Gifts  to  executors  may  create  resulting  trusts. 
§  156.     Resulting  trusts  do  not  arise  upon  gifts  to  charitable  uses. 
§  157.     A  gift  upon  trust  or  to  a  trustee  and  no  trust  declared. 

156 


CHAP,    v.]  PURCHASE    WITH    ANOTHEU'S    MONEY.  [§  124. 

§  158.     Always  a  matter  of  iutentiua  to  be  gathered  from  the  whole  instru- 
ment. 

§  159.  Where  a  special  trust  fails  it  will  result. 

§  160.  Where  a  s|jecial  tru.st  fails  fr(jni  illegality  or  lapses,  it  results. 

§  IGOa.  To  whom  it  results. 

§§  IGl,  162.     Whether  a  trust  results  from  a  voluntary  conveyance  without  con- 
sideration. 

§  163.  Equity  docs  not  favor  such  conveyances;  they  maybe  void  for 

fraud,  but  no  trust  results. 

§  164.  Voluntary  conveyances  to  wife  or  child. 

§  1G5.  No  trust  results  from  a  fraudulent  transaction. 

§  165  a.  How  a  resulting  trust  is  executed. 

§  124.  It  has  been  seen  from  the  preceding  chapters  that 
trusts  are  created  by  the  express  dispositions  of  parties,  or 
they  are  implied  by  courts  from  the  words  used  in  such  ex 
press  dispositions.  Tlicre  is  another  class  of  tru.sts  which 
result  in  law  from  the  acts  of  parties,  whether  they  intended 
to  create  a  trust  or  not,  and  they  are  aptly  designated  as 
resulting  trusts  (a).  They  are  sometimes  called  presumptive 
trusts,  because  the  law  presumes  them  to  be  intended  by  the 
parties  from  the  nature  and  character  of  their  transactions 
with  each  other,  although  the  general  foundation  of  this  kind 
of  trusts  is  the  natural  equity  that  arises  when  parties  do 
certain  things.  Thus,  if  one  pays  the  purchase-money  of  an 
estate,  and  takes  the  title-deed  in  the  name  of  another,  in  the 
absence  of  all  evidence  of  intention,  the  law  presumes  a  trust, 
from  the  natural  equity  that  he  who  pays  the  money  for  prop- 
erty ought  to  enjoy  the  beneficial  interest.     The  statute  of 

(a)  See  Albright  v.  Oy.ster,   140  Stees,    47   Minn.    Ill  ;    Puckett   r. 

U.  S.  493;  Lewis  v.  Wells,  85  Fed.  Benjamin,  21  Oregon,  .'ITO;  Taylor 

Rep.  896  ;  Dana  v.  Dana,  1.54  Mass.  v.  Miles,  19  id.  550;   Leader  v.  Tier- 

491;    Beringer  v.  Lutz,   179   Penn.  ney,  45  Neb.  753 ;  Hawks  r.  Sailors, 

St.  1  ;  Converse  r.  Noyes,  06  N.  H.  87  Ga.  234  ;  Davis  i'.  Duvis,  89  id. 

570;    Hudson   v.   White,    17   R    L  191:  Annis  u.  Wilson,  15  Col.  236 : 

519;    Security  Inv.  Co.   v.  Garrett,  Campbell    v.    First   Nat.   Bank,  22 

3  App.  D.  C.  69;    Cox  v.   Cox,   95  id.  177;  Cobb  v.  Edwards.  117  N.  C. 

Va.    173;    Claflin    v.    Ambrose,    37  244;    Goforth  r.   Goforth.  47  S.  C. 

Fla.  78;  McGraw  V.  Daly,  82  Mich.  126;    Plass   v.  Plass,    122    Cal.    3; 

500  ;  Ripley  v.  Seligman,  88  id.  177;  Wacker  v.  Wacker  (Mo.),  48  S.  W. 

Rice  r.  Rice,  107  id.241 ;  Champlin  835;   Piedmont    Land  Co.  r.   Pied- 

V.  Champlin,  136  111.  309 ;  Hagan  v.  mont  Foundry  Co.,  96  Ala.  389. 
Powers,  103  Iowa,  593  ;  Lambert  v. 

157 


§  125.]  RESULTING   TRUSTS.  [CHAP.   V. 

frauds  does  not  affect  the  creation  of  these  trusts,  for  the 
reason  that,  where  there  is  no  evidence  of  intention,  it  could 
not  be  expected  that  a  declaration  of  intention  in  writing, 
properly  signed,  would  be  made  or  could  be  produced. 

§  125.  Lord  Chancellor  Hardwicke  said  that  a  resulting 
trust  arising  by  operation  of  law  existed:  (1)  when  an  estate 
was  purchased  in  the  name  of  one  person  and  the  considera- 
tion came  from  another ;  (2)  when  a  trust  was  declared  only 
as  to  part,  and  nothing  was  said  as  to  the  residue,  that  residue 
remaining  undisposed  of,  remained  to  the  heir-at-law ;  and  he 
observed  that  he  did  not  know  of  any  other  instances,  unless 
in  case  of  fraud. ^  In  this  chapter  resulting  trusts  will  be 
examined  under  five  heads:  (1)  when  the  purchaser  of  an 
estate  pays  the  purchase-money  and  takes  the  title  in  the 
name  of  a  third  person ;  (2)  where  a  person  standing  in  a 
fiduciary  relation  uses  fiduciary  funds  to  purchase  property, 
and  takes  the  title  in  his  own  name ;  (3)  where  an  estate  is 
conveyed  upon  trusts,  which  fail,  or  are  not  declared,  or  are 
illegal ;  (4)  when  the  legal  title  to  property  is  conveyed,  and 

1  Lloyd  V.  Spillett,  2  Atk.  150.  In  2  Lomax,  Dig.  200,  resulting  trusts 
are  considered  under  the  name  of  implied  trusts,  as  arising:  (1)  out  of  the 
equitable  conversion  of  land  into  money  or  money  into  land;  (2)  where  an 
estate  is  purchased  in  the  name  of  one  person  and  the  consideration  is 
paid  by  another;  (.3)  where  there  is  a  conveyance  of  land  without  any 
consideration  or  declaration  of  uses;  (4)  where  a  conveyance  of  land  is 
made  in  trust  as  to  part  and  the  conveyance  is  silent  as  to  the  residue ; 
(5)  where  a  conveyance  is  made  upon  such  trusts  as  shall  be  appointed, 
and  there  is  default  of  appointment:  (G)  where  a  conveyance  is  made  upon 
particular  trusts  which  fail  of  taking  effect;  (7)  where  a  purchase  is  made 
by  a  trustee  with  trust-money ;  (8)  where  a  purchase  of  real  estate  is  made 
by  a  partner  in  his  own  name  with  partnership  funds;  (9)  where  a  renewal 
of  a  lease  is  obtained  by  a  trustee  or  other  person  standing  in  a  fiduciary 
relation;  (10)  where  purchases  are  made  of  outstanding  claims  upon  an 
estate  by  trustees  or  some  of  the  tenants  thereof  connected  by  privity  of 
estate  with  others  having  an  interest  therein;  (11)  where  fraud  has  been 
committed  in  obtaining  the  conveyance;  (12)  where  a  purchase  has  been 
made  without  a  satisfaction  of  the  purchase-money  to  the  vendor;  (13) 
■where  a  joint  purchase  has  been  made  by  several,  and  payments  of  the 
purchase-money  to  the  vendor  have  been  made  beyond  their  proportion. 
158 


CHAP,    v.]  PURCHASE    WITH    ANOTHER'S   MONEY.  [§  12G. 

there  is  no  reason  to  infer  that  it  was  the  intention  to  convey 
the  beneficial  interest;  and  (5j  where  voluntary  conveyances 
arc  made,  or  conveyances  without  consideration. 

§  126.  Where,  upon  a  purchase  of  property,  the  convey- 
ance of  the  legal  title  is  taken  in  the  name  of  one  person, 
while  the  consideration  or  a  part  of  it  is  given  or  paid  by 
another,  not  in  the  way  of  a  loan  to  the  grantee,  the  parties 
being  strangers  to  each  other,  a  resulting  trust  immediately 
arises  from  the  transaction  (unless  it  would  be  enforcing  a 
fraud  to  raise  a  resulting  trust  ^),  and  the  person  named  in 
the  conveyance  will  be  a  trustee  for  the  party  from  whom  the 
consideration  proceeds.^     In  a  Minnesota  case  the  court  said 

1  Almond  v.  Wilson,  75  Va.  626. 

2  Willis  i:  Willis,  2  Atk.  71;  Lloyd  v.  Spillett,  2  Atk.  150;  Eider  v. 
Kidder,  10  Ves.  3(K);  Ex  parte  Houghton,  17  Ves.  253;  Trench  v.  Harri- 
son, 17  Sim.  Ill;  Rediugton  c.  Kedington,  3  Ridg.  177;  Crop  u.  Norton, 
9  iMod.  235;  Barn.  184;  2  Atk.  75;  Ilungate  v.  Hungate,  Toth.  120;  Ex 
parte  Vernon,  2  P.  Wms.  549;  Ambrose  v.  Ambrose,  1  id.  321 ;  Woodman 
V.  Morrel,  2  Freem.  33,  123;  Murless  r.  Franklin,  1  Swanst.  17;  Finch  v. 
Finch,  15  Ves.  50;  Grey  r.  Grey,  2  Swanst.  597  ;  Finch,  340;  Groves  r. 
Groves,  3  Y.  &  J.  170 ;  Lade  r.  Lade,  1  Wils.  21 ;  ]May  r.  Steele,  2  V.  & 
B.  390;  Lever  v.  Andrews,  7  Bro.  P.  C.  288;  Pelly  v.  Maddin,  21  Vin. 
Ab.  498;  Smith  v.  Caraelford,  2  Ves.  Jr.  712  ;  Anon.  2  Vent.  361 ;  Withers 
V.  Withers,  Amb.  151 ;  Prankerd  v.  Prankerd,  1  S.  &  S.  1 ;  Howe  i'.  Howe, 
1  Vern.  415;  Clarke  v.  Danvers,  1  Ch.  Cas.  310;   Goodright  r.  Hodges, 

I  Watk.  Cop.  227  ;  Lofft,  230  ;  Smith  v.  Baker,  1  Atk.  385 ;  Bartlett  v. 
Pickersgill,  1  Eden,  515  ;  Rothwell  r.  Dewees,  2  Black.  G13  ;  Buck  v.  Pike, 

II  Maine,  9;  Baker  r.  Vining,  30  id.  126;  Kelley  r.  Jenness,  50  id.  455  ; 
Page  V.  Page,  8  N.  H.  187  ;  Hall  v.  Young,  37  id.  134 ;  Pembroke  v. 
Allenstown,  21  id.  107  ;  Tebbetts  v.  Tilton,  31  id.  283  ;  Dow  v.  Jewell,  18 
id.  340;  Tyford  v.  Thurston,  16  id.  399;  Hopkinson  v.  Dumas,  42  id.  296; 
Hall  V.  Congdon,  56  id.  270;  Pinney  j'.  Fellows,  15  Vt.  525;  Dewey  i;. 
Long,  25  id.  564 ;  Clark  r.  Clark,  43  id.  685 ;  Peabody  v.  Tarbell,  2  Cash. 
232;  Livermore  v.  Aldrich,  5  id.  435;  Root  r.  Blake,  14  Pick.  271;  Mc- 
Gowan  v.  McGowan,  14  Gray,  121 ;  Kendall  i'.  Mann,  11  Allen,  15;  Powell 
V.  Monson  &  Brimfield  Manuf.  Co.,  3  Mason,  362;  Hoxie  r.  Carr,  1  Sumn. 
187  ;  Dean  v.  Dean,  6  Conn.  285;  Jackson  v.  Sternberg,  1  Johns.  Cas.  153; 
1  Johns.  45;  Jackson  r.  IMatsdorf,  11  id.  91 ;  Boyd  v.  McLean,  1  Johns.  Ch. 
582 ;  Botsford  r.  Burr,  id.  408 ;  Steere  v.  Steere,  5  id.  1 ;  White  i:  Carpen- 
ter, 2  Paige,  218;  Kellogg  v.  Wood,  4  id.  579;  Foote  ;•.  Colvin,  3  Johns. 
218;  Jackson  r.  Morse,  16  id.  197;   Guthrie  v.  Gardner,  19  Wend.  414; 

159 


§  126.]  RESULTING   TRUSTS.  [CHAP.   V. 

that  no  resulting  trust  arose  where  land  was  bought  by  A.  in 
the  name  of  B.,  and  B.  sold  the  property  in  violation  of  his 

Forsyth  v.  Clark,  3  id.  638;  Partridge  v.  Havens,  10  Paige,  618  ;  Jackson 
V.  Mills,  13  Johns.  463;  Lounsbury  ;;.  Purdy,  16  Barb.  376;  Jackson  v. 
AVoods,  1  Johns.  Cas.  163;  Gomez  v.  Tradesman's  Bank,  4  Sandf.  S.  C. 
106  ;  Hempstead  v.  Hempstead,  2  Wend.  109 ;  Hopk.  288 ;  Harder  i'.  Harder, 
2  Sand.  Ch.  17 ;  Brown  v.  Cheney,  59  Barb.  628;  Union  College  v.  Wheeler, 
59  Barb,  585;  McCartney  v.  Bostwick,  32  N.  Y.  53;  Depeyster  v.  Gould, 
2  Green,  Ch.  480  ;  Howell  v.  Howell,  15  N.  J.  Eq.  75;  Stratton  v.  Dialogue, 
16  id.  70  ;  Johnson  v.  Dougherty,  18  id.  406  ;  Stevens  v.  Wilson,  IS  id.  447; 
Cutler  V.  Tuttle,  19  id.  558;  Stewart  v.  Brown,  2  Ser.  &  R.  461  ;  Jackman 
V.  Ringland,  4  Watts  &  S.  149  ;  Strimpfler  v.  Roberts,  18  Penn.  St.  283; 
Edwards  v.  Edwards,  39  id.  369  ;  Harrold  v.  Lane,  55  id.  268 ;  Nixon's 
App.,  63  id.  279;  Wallace  v.  Duffield,  2  Serg.  &  R.  521;  Lloyd  v.  Carter, 

5  Harris,  216;  Beck  v.  Graybill,  4  Casey,  66;  Kisler  v.  Kisler,  2  Watts, 
323;  Lynch  v.  Cox,  11  Harris,  265;  Newells  i\  Morgan,  2  Harr.  225; 
Hollis  I'.  Hollis,  1  Md.  Ch.  479 ;  Dorsey  v.  Clarke,  4  Har.  &  J.  551 ;  Glenn 
V.  Randall,  2  Md.  Ch.  221;  Farringer  u.  Ramsey,  2  Md.  365;  Cecil  Bank 
V.  Snively,  23  Md.  253;  Neal  v.  Haythrop,  3  Bland,  551;  Bank  of  U.  S. 
V.  Carrington,  7  Leigh,  566;  Henderson  v.  Hoke,  1  Dev.  &  Bat.  Eq.  119; 
McGuire  v.  McGowen,  4  Des.  491;  Dillard  v.  Crocker,  Speers's  Eq.  20; 
Williams  v.  Hollingsworth,  1  Strob.  Eq.  103  ;  Garrett  v.  Garrett,  1  Strob. 
Eq.  96  ;  Kirkpatrick  ?'.  Davidson,  2  Kelly,  297 ;  Taliaferro  v.  Taliaferro, 

6  Ala.  404 ;  Foster  v.  Trustees  of  the  Athenaeum,  3  Ala.  302 ;  Caple  v. 
McCollum,  27  Ala.  461 ;  Anderson  v.  Jones,  10  Ala.  401  ;  Mahorner  v. 
Harrison,  13  Sm.  &  M.  65;  Walker  v.  Burngood,  id.  764;  Powell 
V.  Powell,  1  Freem.  Ch.  134;  Leiper  v.  Hoffman,  26  Miss.  615;  Runnells 
V.  Jackson,  1  How.  (Miss.)  358;  Harvey  v.  Ledbetter,  48  Miss.  95  ;  ]\IcCar- 
roll  V.  Alexander,  48  Miss.  128  ;  Hall  v.  Sprigg,  7  Mar.  (La.)  243  ;  Gaines 
V.  Chew,  2  How.  619;  McDonough  Ex'rs  v.  Murdock,  15  How.  367; 
Tarpley  v.  Poaze,  2  Tex.  139  ;  Long  v.  Steiger,  8  Tex.  460  ;  Oberthier  v. 
Strand,  33  Tex.  .522;  McGuire  v.  Ramsey,  4  Eng.  519;  Ensley  v.  Ballen- 
tine,  4  Humph.  233  ;  Thomas  v.  Walker,  5  Humph.  93;  Smitheal  v.  Gray, 
1  Humph.  491;  Click  v.  Click,  1  Heisk.  607;  Gass  v.  Ga.ss,  id..  613; 
Harris  i'.  Union  Bank,  1  Cold.  152;  Perry  v.  Head,  1  A.  K.  Marsh.  47; 
Chaplin  v.  McAfee,  3  J.  J.  Marsh.  513;  Letcher  i'.  Letcher,  4  id.  592  ; 
Doyle  I'.  Sleeper,  1  Dana,  536;  Stark  v.  Canady,'  3  Litt.  399;  Creed  v. 
Lancaster  Bank,  1  Ohio  St.  1;  Williamsu.  Van  Tuyl,  2id.  336;  McGovern 
V.  Knox,  21  id.  551;  Elliott  v.  Armstrong,  2  Blackf.  198;  Jennison  «;. 
Graves,  id.  444;  Rhodes  r.  Green,  36  Tnd.  11;  Milliken  v.  Ham,  id.  166; 
Church  V.  Cole,  id.  35;  Hampson  r.  Fall,  64  id.  382;  Smith  v.  Sackett, 
5  Gilm.  .534;  Prevo  r.  Walters,  4  Scam.  33;  Bruce  v.  Roney,  18  Til.  67; 
Seaman  v.  Cook,  14  id.  501;  Williams  v.  Brown,  id.  200;  Nickols  v. 
Thornton,  16  id.  113;  Latham  v.  Henderson,  47  id.  185;  Rankin  u.  Har- 

160 


CHAP,   v.]  rURCIIASE   WITH   ANOTHER'S   MONEY.  [§  12G. 

verbal  promise  to  transfer  to  A.,  remarking  that  a  resulting 
trust  could  arise  only  on  a  conveyance  of  land,  not  on  a 
promise  to  convey.  This  is  clearly  too  narrow  a  meaning  to 
give  the  law,  and  the  decision  on  the  facts  did  not  require 
it,  as  the  court  allowed  A.  to  recover  from  B.  the  purchase- 
money  as  benefit  received  by  B.  voluntarily  from  A.^  Tiie 
burden  is  of  course  upon  the  one  claiming  the  existence  of 
the  trust  to  establish  the  facts  upon  which  it  rests  by  clear 
and  satisfactory  evidence.^  In  New  York  and  Wisconsin  there 
are  statute  provisions  that  an  absolute  deed  made  with  consent 

per,  23  Mo.  579;  Paul  v.  Chouteau,  14-  Mo.  580;  Kelly  v.  Johnson,  28  id. 
249  ;  Baumgartner  c.  Guessfeld,  38  id.  36 ;  Johnson  v.  Quarles,  46  id,  423; 
Russell  V.  Lode,  1  Iowa,  560;  McLennan  r.  Sullivan,  13  id.  521;  Tlnsley  v. 
Tinsley,  52  id.  14 ;  Ragan  v.  Walker,  1  Wis.  527  ;  Irvine  v.  Marshall,  7 
Minn.  286;  Millard  v.  Hathaway,  27  Cal.  119;  Bayles  v.  Baxter,  22  Cal. 
575;  Case  v.  Codding,  38  id.  191 ;  Wilson  v.  Castro,  31  id.  420;  Jenkins  i-. 
Frink,  30  id.  586;  Settembre  v.  Putnam,  30  id.  490;  Frederick  v.  Haas, 

5  Nev.  386;  Philips  v.  Cramnaond,  2  Wash.  C.  C.  441;  Hardens.  Darwin 

6  Pulley,  66  Ala.  55;  Lewis  v.  Building  &  Loan  Assoc,  70  id.  276;  Rose 
V.  Gibson,  71  id.  35 ;  Shelby  r.  Tardy,  84  id.  327 ;  Shelton  v.  A.  &  T.  Co., 
82  id.  315;  Barroilhet  v.  Anspacher,  08  Cal.  116  ;  Murphy?;.  Peabody,  63 
Ga.  522;  Cottle  v.  Ilarrold,  72  id.  830;  McNamara  i\  Garrity,  106  III. 
384;  Springer  r.  Springer,  114  id.  550  ;  Harris  v.  Mclntyre,  118  id.  275; 
Donlin  v.  Bradley,  119  id.  420;  Bush  v.  Stanley,  122  id.  406;  Cooper  v. 
Cockrura,  87  Ind.  443 ;  Boyer  v.  Libey,  88  id.  235 ;  Witts  v.  Horney,  59 
Md.  581 ;  Forre.ster  v.  IMoore,  77  Mo.  651 ;  Bear  v.  Koenigstein,  16  Neb. 
65;  Gogherty  v.  Bennett,  37  N.  J.  Eq.  87;  Syckle  v.  Kline,  34  id.  332; 
Ramage  v.  Ramago,  27  S.  C.  39;  Sexton  v.  Ilollis,  26  S.  C.  231;  Richard- 
son i\  Mounce,  19  id.  477;  Ex  parte  Trenholm,  id.  126,  —  an  interesting 
case  because  of  the  decision  that  money  drawn  from  a  fund  belonging  to 
A.  and  B.  together  was  to  be  considered  as  taken  from  the  part  that  be- 
longed to  A.,  and  no  trust  should  result  to  B.  in  the  land  bought  by  the 
check,  it  appearing  that  on  settlement  of  all  the  accounts  B.  was  indebted 
to  A.  ;  Laws  v.  Law,  76  Va.  527 ;  see  also  Murray  v.  Sell,  23  W.  Va. 
473;  Heiskell  v.  Powell,  23  W.  Va.  717.  The  rule  applies  where  money 
is  advanced  to  enable  a  former  owner  to  redeem  from  a  tax  sale.  Fames 
V.  Ilardin,  111  111.  645.  In  Michigan,  the  transaction  or  trust  must  ap- 
pear upon  the  face  of  the  deed,  otherwise  no  trust  results  to  the  payer 
of  the  purchase-money.  Groesbeck  v.  Seeley,  13  Mich.  329 ;  Campbell  v. 
Campbell,  21  Mich.  428. 

1  Johnson  v.  Krassin,  25  Minn.  118,  see  §  226. 

2  Bibbo.  Hunter,  79  Ala.  351;  Carter  Bros.   v.   Challen,   83  id.  135; 
Reynolds  v.  Caldwell,  80  Ala.  232. 

VOL.  I.  — 11  161 


§  126.]  RESULTING  TEUSTS.  [CHAP.   V. 

of  the  one  who  pays  the  purchase-money  shall  vest  the  title 
in  the  grantee  ^  against  the  person  paying  the  money ;  ^  but 
with  this  exception  the  clear  result  of  all  the  cases  is,  that  a 
trust  of  a  legal  estate,  whether  freehold,  copyhold,  or  lease- 
hold, whether  taken  in  the  names  of  the  purchaser  and  others 
jointly,  or  in  the  name  of  others,  without  that  of  the  pur- 
chaser, whether  in  one  or  several,  whether  jointly  or  succes- 
sively, results  to  the  person  who  advanced  the  purchase- 
money,^  or  on  whose  behalf  it  is  advanced ;  as  where  the 
money  is  advanced  by  way  of  loan  to  the  purchaser,  and  the 
title  is  taken  in  the  name  of  the  lender  as  security,  a  trust 
results  to  the  purchaser.^  If  only  part  of  the  purchase-money 
is  paid  by  a  third  person,  a  trust  results  pro  tanto^  (a).     This 

1  Schultze  V.  New  York  City,  103  N.  Y.  Ill;  Campbell  v.  Campbell, 
70  Wis.  311  ;  R.  S.  §  2077 ;  Skinner  v.  James,  69  id.  605.  And  the  bur- 
den is  on  the  person  claiming  the  trust  to  disprove  assent.  Knight  v. 
Leary,  54  Wis.  459.  Even  though  the  grantee  subsequently  acknowledges 
the  trust  in  writing,  it  will  not  avail  against  one  who  has  taken  the  land 
from  the  grantee  for  value,  or  even  against  his  assignees  in  insolvency. 
Stebbins  v.  Morris,  23  Blatch.  (U.  S  )  181, —  a  case  construing  the  New 
York  statutes,  the  object  of  which  is  to  prevent  secret  trusts  ;  and  for  this 
purpose  they  destroy  trusts  resulting  from  the  payment  of  purchase-money 
when  the  deed  is  made  to  another  with  consent  of  the  payor,  except  that 
every  such  conveyance  is  deemed  fraudulent  as  against  the  creditors 
of  the  person  paying  the  purchase-money  nntil  fraudulent  intent  is 
disproved. 

2  As  against  his  creditors  the  transaction  is  presumed  fraudulent  until 
fraudulent  intent  is  disproved,  and  a  trust  results  in  their  favor.  Niver 
V.  Crane,  98  N.  Y.  40. 

3  By  Lord  Ch.  B.  Eyre  in  Dyer  v.  Dyer,  2  Cox,  92. 

4  Bates  V.  Kelly,  80  Ala.  142. 

5  Somers  v.  Overhulser,  67  Cal.  237;  Lipscomb  v.  Nichols,  6  Col.  290. 

(a)  A  resulting  trust  arises  from  paid.    Collins  v.  Corson  (N.  J.  Eq.), 

payment  of  apart  of  the  purchase  30  Atl.  862;  Fay  v.  Fay,  50  N.  J. 

price  of  real  estate  only  when  the  Eq.  260;   O'Donncll  v.  White,  18 

proportionate  share  is  ascertainable  R.  I.  659 ;  Rogers  v.  Tyley,  144  111. 

and  the  payment  was  distinctly  made  652;  Towle  r.  Wadsworth,  147  111. 

for  a  specific  part.     In  these  cases  80 ;  Van  Buskirk  v.  Van  Buskirk, 

the  interest  of  the  cestui  que  trust  is  148  111.  9  ;  Strong  i\  Messinger,  id. 

determined   by  the  proportion   his  431;  Torrencer.  Shedd,  156  111.  194; 

contribution  bears  to  the  total  sum  Obermiller  v.  Wylie,  36  F.  R.  641 ; 
162 


CHAP,   v.]  PURCHASE   WITH  ANOTHER'S   MONEY.  [§  126. 

rule  lias  its  foundation  in  the  natural  presumption,  in  the 
absence  of  all  roljuttiui^  circumstances,  that  he  who  su[)plies 
the  purchase-money  intends  the  j)urchase  to  be  for  his  own 
benefit,  and  not  for  another,  and  that  the  conveyance  in  the 
name  of  another  is  a  matter  of  convenience  and  arrangement 
between  the  parties  for  collateral  purjjoses,^  and  this  rule  is 
vindicated  by  the  experience  of  mankind.^  (a)  Where  the 
purchase-money  is  not  already  a  trust  fund  it  must  be  paid  at 
the  time  the  purchase  is  made  in  order  to  create  a  resulting 
trust  proper  (that  is,  the  trust  must  arise  at  the  time  of  the 
transfer  of  the  title,  and  cannot  be  raised  by  the  subsequent 
application  of  money  of  another  to  the  satisfaction  of  the 
unpaid  purchase-money^) ;  and  it  must  also  be  borne  in  mind 
that  if  one  person  advance  the  money  by  way  of  loan  to  the 
vendee,  no  trust  results  ^  (1>).  Analogous  to  these  cases  where 
the  money  is  paid  to  the  vendor  by  or  on  behalf  of  some  one 
other  than  the  vendee  of  the  legal  title,  are  cases  in  which 
the  deed  is  executed  without  intent  of  a  gift  or  sale  on  time, 
and  the  purchase-money  is  not  paid.  In  effect,  the  vendor 
himself  pays  the  purchase-money  in  such  cases,  and  a  trust 

1  2  Story's  Eq.  Jur.  §  1201  ;  Glidewell  v.  Shaugh,  26  Ind.  319 ;  Bostle- 
man  v.  Bostleman,  24  N,  J.  Eq.  103. 

2  Edwards  i-.  Edwards,  39  Penn.  St.  369. 

8  Milner  i'.  Freeman,  40  Ark.  62 ;  see  §  133. 
*  Whaley  v.  Wlialey,  71  Ala.  162 ;  see  §  133. 

McGee  v.  Wells  (S.  C),  30  S.   E.  loh,  148  X.  Y.  103,  107;  Clark  v. 

602;  Currence  r.  Ward,  43  W.  Ya.  Timmons  (Tenn.),  39   S.  W.   534. 

367;  Rogers  r.  Donnellan,  1 1  Utah,  The    husband  has  the  burden    of 

108 ;  Barton  r.  Magruder,  69  Miss,  proof  if  he  claims  that  the  money 

462 ;    Speer    v.    Burns,    173    Penn.  was  transferred  to  him  as  a  gift  or 

St.  77  ;  Baylor  r.  Hopf,  81   Texas,  loan.     Beny  v.   Wiedman,    40  W. 

637;  Camden  i\  Bennett,    64  Ark.  Ya.  36  ;    Sing   Bow  v.    Sing  Bow, 

15.5.     A  wife's  payment  of  a  part  of  (N.  J.  Eq.),  30  Atl.  867;  Kegerreis 

the  consideration  for  a  conveyance  r.  Lutz,  187  Penn.  St.  252  ;  Berin- 

to  her  husband  vests  in  her,  in  the  ger  v.  Lutz,  188  id.  364. 
absence  of  fraud,  an  estate  in  the  (a)  Smithsonian   Institution   v. 

land  only  when  there  is  a  definite  Meech,  169  U.  S.  398,  407. 
intention   that    a    specific   interest         (Ji)  Fowler  y.  Webster,  180  Penn. 

shall   vest  in  her  *n    proportion  to  St.  610. 
the  sum  paid.     Schierloh  v.  Schier- 

163 


§  127.]  RESULTING   TRUSTS.  [CHAP.   V. 

results  to  him.^    These  resulting  trusts  cannot  affect  a  bona 
fide  purchaser  without  notice.^ 

§  127.  If  a  person  having  a  fiduciary  character  purchase 
property  with  the  fiduciary  funds  in  his  hands,  and  take  the 
title  in  his  own  name,  a  trust  in  the  property  will  result  to 
the  cestui  que  trust,  or  other  person  entitled  to  the  beneficial 
interest  in  the  fund  with  which  the  property  was  paid  for.^ 
As  if  a  trustee  purchase  with  the  trust  fund  and  take  the 
title  in  his  own  name  or  in  the  name  of  another  with  notice 
of  the  trust,  the  trust  results  to  the  cestui  que  trust ;  ^  if  a 
guardian  purchase  with  the  money  of  his  ward,  a  trust  will 
result  to  the  ward ;  ^  and  if  an  executor  or  administrator 
purchase  property  in  his  own  name  with  money  belonging 

1  Bennet  v.  Hutson,  33  Ark.  762. 

2  Gray  v.  Corbit,  4  Del.  Ch.  135. 

«  Schlaeper  i'.  Corson,  32  Barb.  510 ;  Rice  v.  Rice,  108  111.  199  ;  Market 
V.  Smith,  33  Kans.  66,  whether  the  title  taken  is  absolute  or  only  qualified 
or  contingent;  Weaver  v.  Fisher,  110  111.  146.  In  St.  Patrick's  Church  v. 
Daly,  116  111.  79,  the  rule  is  not  correctly  stated,  though  the  decision  is 
right  on  the  facts.  Palmetto  Co.  v.  Risley,  25  S.  C.  309  ;  Salinas  v.  Pear- 
sail,  24  S.  C.  179  ;  Kennedy  v.  Baker,  59  Tex.  151.  An  agent  of  an 
illiterate  man,  loaning  his  principal's  money  on  note  and  mortgage  pay- 
able to  himself,  who  bids  in  the  property  at  foreclosure  sale,  holds  the 
title  in  trust  for  his  principal.     Cookson  v.  Richardson,  69  111.  137. 

4  Freeman  v.  Kelly,  1  Hoff.  90  ;  Harrisburgh  Bank  v.  Tyler,  3  Watts 
&  S.  373;  Martin  v.  Greer,  1  Ga.  Dec.  109;  Moffitt  v.  McDonald,  11 
Humph.  457;  Kirkpatrick  v.  McDonald,  11  Penn.  St.  387;  Wilhelra  i-. 
Folmer,  6  id.  296;  Thompson's  App.  22  id.  16;  Day  v.  Roth,  18  N.  Y. 
448;  Lathrop  v.  Gilbert,  2  Stockt.  344;  McLarren  r.  Brewer,  51  Me.  402; 
Pugh  V.  Pugh,  9  Ind.  132;  Valle  v.  Bryan,  19  Mo.  423;  Neill  v.  Keese, 
13  Tex.  187;  Hancock  v.  Titus,  33  Miss.  224;  Whaley  v.  'Whaley,  71 
Ala.  161;  Preston  v.  McMillan,  58  Ala.  84;  Buck  v.  Paine,  75  Maine, 
347;  Bank  r.  Simonton,  86  N.  C.  189. 

^  Caplinger  v.  Stokes,  Meigs,  175 ;  Lee  v.  Fox,  6  Dana,  171 ;  Pugh  v. 
Pugh,  9  Ind.  132;  Johnson  v.  Dougherty,  3  Green,  Ch.  406;  Bancroft  i\ 
Cousen,  13  Allen,  50.  But  if  the  guardian  buy  for  the  ward,  but  use  his 
own  money  in  payment,  the  ward  cannot  claim  a  trust  in  the  land,  for  it 
is  within  the  statute  of  frauds.  Kisler  i'.  Kisler,  2  Watts,  323  ;  Johnson 
V.  Dougherty,  18  N.  J.  Ch.  406 ;  Snell  v.  Elam,  2  Ileisk.  82.  If  a 
guardian  receive  a  note  in  his  own  name  in  payment  of  a  debt  due  the 
ward,  the  note  is  held  by  him  in  trust.  Dorr  v.  Davis,  76  Maine,  301. 
164 


CHAP,   v.]  PURCHASE   WITH   TEUST-MONEY.  [§  127- 

to  the  estate,  a  trust  in  the  property  will  result  to  the  heirs, 
k'ijatecs,  or  other  pensoiis  entitled  to  the  beneficial  interest 
in  the  estate.^  A  purchase  with  trust  funds  is  virtually  a 
purchase  for  the  cestui.^  If  the  trustees  of  a  corporation  pur- 
chase lands  in  their  own  names,  with  the  corporate  funds, 
a  trust  will  result  to  the  corporation;  ^  or  if  a  committee, 
guardians,  or  trustees  of  an  insane  person  purchase  projjerty 
in  their  own  names  with  the  lunatic's  money,  a  trust  results 
to  the  lunatic;*  or  if  a  trustee  erect  buildings  on  his  own 
land  with  the  trust  funds,^  or  if  an  agent  with  the  money  of 
his  principal  purchase  lands  and  take  the  deeds  to  himself, 
a  trust  will  result  to  the  principal  ;^  or  if  a  partner  purchase 
lands  with  partnership  funds,  and  take  the  title  to  himself, 
a  trust  will  result  to  the  partnership ; '  (a)   or  if   land   is 

1  Wallace  v.  Duffield,  2  Ser.  &  R.  521  ;  Buck  v.  Uhrich,  10  Penn.  St. 
499 ;  Claussen  v.  Le  Franz,  1  Clarke,  226 ;  McCrory  v.  Foster,  1  Clarke, 
Iowa,  271  ;  Harper  r.  Archer,  28  Miss.  212;  Schaffuer  v.  Grutzmacher, 
6  Clarke,  137 ;  Seaman  v.  Cook,  14  111.  501 ;  Garrett  v.  Garrett,  1  Strob. 
Eq.  96  ;  Williams  v.  Hollingsworth,  1  Strob.  Eq.  103 ;  White  v.  Drew, 
42  Mo.  5G1 ;  Stow  v.  Kimball,  28  111.  93  ;  Dodge  v.  Cole,  97  111.  338  ;  Bar- 
ker V.  Barker,  14  Wis.  131. 

2  Gale  I'.  Harby,  20  Fla.  171. 

8  Church  r.  Sterling,  16  Conn.  388;  Church  v.  Wood,  5  Ham.  283. 

*  Reid  V.  Fitch,  11  Barb.  399;  Turner  v.  Pettigrew,  6  Humph.  438; 
Stratton  v.  Dialogue,  1  Green,  Ch.  70  ;  Buffalo  R.  R.  Co.  v.  Lampson,  47 
Barb.  533  ;  Hamnett's  App.,  72  Penn.  St.  337. 

6  Brazel  v.  Fair,  26  S.  C.  370. 

6  Robb's  App.,  41  Penn,  St.  45;  Eshleman  v.  Lewis,  49  id.  410;  Far- 
mers' etc.  Bank  v.  King,  57  id.  202;  Church  v.  Sterling,  16  Conn.  388; 
Bank  of  America  v.  Pollock,  4  Edw.  215  ;  Day  v.  Roth,  18  N.  Y.  448  ; 
Bridenbecker  v.  Lowell,  32  Barb.  10;  Moffitt  v.  McDonald,  11  Humph. 
457  ;  Hutchinson  v.  Hutchinson,  4  Des.  77  ;  Follansbe  r.  Kilbreth,  17111. 
522  ;  Chastain  v.  Smith,  30  Ga.  96 ;  Wynn  v.  Sharer,  23  Ind.  253. 

'  Philips  V.  Crammond,  2  Wash.  C.  C.  441  ;  Baldwin  v.  Johnston, 
Saxt.  441;  Freeman  v.  Kelly,  Hoff.  90;    Turner   v.  Pettigrew,  6  Humph. 

(a)  See     Riddle    v.     Whitehill,  finally  paid,  and  sold  a  quarter  in- 

135  U.  S.  621 ;    Ricketts  r.  Murray,  terest  on  the  basis  of  his  represen- 

73  F.  R.  690 ;    Darrow    r.   Calkins,  tation,    it  was   held  to    be   a  joint 

154  N.  Y.  503.     Where  one  repre-  account  relation,  and  the  buyer  was 

sented  that  the  price  to  be  paid  for  held  entitled  to  the  excess  he  paid. 

a  mine  was  much   larger  than  he  Merino  v.  Munoz,  38  N.  Y.  S.  678. 

165 


§  127.] 


RESULTING  TKUSTS. 


[chap.  V. 


bought  by  a  firm  for  firm  purposes  with  firm  money,  and  the 
title  is  taken  in  their  individual  names,  it  is  held  in  trust 
for  the  firm;^  or  if  one  take  an  estate  for  services  rendered 
jointly  by  himself  and  another,  the  latter  may  elect  to 
regard  the  first  as  a  trustee ;  ^  (a)  or  if  a  husband  purchase 

438,  441 ;  Edgar  v.  Donnally,  2  Munf.  387  ;  Smith  v.  Burnham,  3  Sumner, 
435;  Piatt  y.  Oliver,  2  McLean,  2G7;  Coder  ij.  Haling,  27  Penn.  St.  84; 
Smith  V.  Ramsey,  1  Gil.  111.  373;  Barkley  v.  Tapp,  87  Ind.  25;  Pugh  v. 
Currie,  5  Ala.  446;  Oliver  v.  Piatt,  3  How.  401  ;  Evans  v.  Gibson,  29  Mo. , 
223  ;  Malloi-y  v.  Mallory,  5  Bush,  564  ;  Settembre  v.  Putnam,  30  Cal.  490;' 
Jenkins  v.  Frink,  30  Cal.  586;  Homer  v.  Homer,  107  Mass.  85;  Richards 
V.  Manson,  101  Mass.  480;  Ebberts's  App.  70  Penn.  St.  79;  Winkfield  v. 
Brinkman,  21  Kans.  682;  Trephagen  v.  Burt,  67  N.  Y.  30;  Boyd  v. 
McClure,  1  Johns.  Ch.  582. 

1  Paige  V.  Paige,  71  Iowa,  318. 

2  Robarts  v.  Haley,  65  Cal.  402. 


(a)  So  when  a  tenant  in  com- 
mon purchases  an  outstanding  title 
or  incumbrance  upon  the  joint 
estate  for  his  own  benefit,  the 
purchase  is  a  trust  for  all  the  co- 
tenants,  and  a  bill  in  equity  lies  to 
enforce  such  trust.  Rector  v.  Gib- 
bon, 111  U.  S.  276,291;  Monroe 
Cattle  Co.  V.  Becker,  147  U.  S.  47; 
Turner  v.  Sawyer,  150  U.  S.  578, 
586 ;  Virginia  Coal  Co.  v.  Kelly,  93 
Va.  332;  Brundy  v.  Mayfield,  15 
Mont.  201 ;  Kintner  v.  Jones,  122 
Ind.  148 ;  Allen  v.  Arkenburgh,  37 
N.  Y.  S.  1032;  Parker  v.  Brast, 
(W.  Va.)  32  S.  E.  269.  This  ap- 
plies when  one  of  several  joint 
lessees  of  land,  to  whom  the  lease 
gives  the  privilege  of  purchasing, 
buys  it  for  himself.  Barbour  v. 
Johnson,  21  D.   C.  40. 

An  agreement  between  two  or 
more  persons,  not  occupying  fiduci- 
ary relations  towards  each  otlier,  to 
join  in  the  purchase  of  land,  the 
title  to  which  is  to  be  taken  in  tlie 
name  of  one  who  pays  the  entire 
166 


consideration,  to  be  held  for  the 
benefit  of  all  in  proportion  to  their 
respective  interests,  is  within  the 
statute  of  frauds,  and  must  be 
evidenced  by  some  writing.  Par- 
sons V.  Phelan,  134  Mass.  109; 
Heiskell  v.  Trout,  31  W.  Va.  810; 
Beulah  Marble  Co.  v.  Mattice,  22 
Col.  547;  Fisk  v.  Patton,  7  Utah, 
399;  Roby  v.  Colehour,  135  111.  300; 

146  U.  S.  153;  Reese  v.  Murnan, 
5  Wash.  373  ;  Maxwell  v.  Barringer, 
110  N.  C.  76;  see  Wood  v.  Perkins, 
.57  F.  R.  258  ;  Bailey  v.  Hemenway, 

147  Mass.  326  ;  Dana  v.  Dana,  154 
Mass.  491;  Towle  v.  Wadsworth, 
147  111.  80 ;  Gunnison  v.  Erie  Dime 
S.  Co.,  157  Penn.  St.  303;  Turner 
V.  Sawyer,  150  U.  S.  578 ;  Peterson 
V.  Boswell,  137  Ind.  211;  Doran  v. 
Doran,  99  Cal.  311  ;  Silvers  v.  Pot- 
ter, 48  N.  J.  Eq.  539. 

When  land  agreed  to  be  conveyed 
is  exchanged  for  other  land,  the 
latter  may  be  subject  to  a  resulting 
trust  as  being  purchased  by  the 
land  agreed  for.     Hallett  v.  Parker 


ciiAr.  v.] 


PURCHASE   WITH   TRUST-MONEY. 


[§  127. 


lands  with  the  sepai-atc  estate  of  his  wife  in  his  hands,  or 
with  the  proceeds  or  accumulations  from  it,  or  money  put 
into  his  hands  to  invest  for  his  wife,  and  take  the  title  in 
his  own  name,  a  trust  results  to  the  wife  ^  (but  not  if  the 

^  Church  V.  Jaqucs,  1  Johns.   Ch.   450;    3  id.  77;  Brooks  v.  Dent, 

1  Johns.  Md.  Ch.  523;  Dickinson  v.  Codwise,  1  Sandf.  Ch.  214;  Pinney 
V.  Fellows,  15  Vt.  525 ;  Barron  v.  Barron,  24  Vt.  375;  Lathrop  v.  Gilbert, 

2  Stockt.  344  ;  Kline's  App.,  39  Penn.  St.  4G3  ;  Davis  v.  Davis,  40  id.  312; 
Bigley  v.  Jones,  114  id.  51U  ;  Rupp's  App.,  100  id.  531;  Raybold  v.  Ray- 
bold,  20  id.  308 ;  Fillman  r.  Divers,  31  id.  429;  Darkin  r.  Darkin,  23 
L.  J.  Ch.  890  ;  Wallace  v.  McCullough,  1  Rich.  Eq.  420 ;  Pritcliard  v. 
Wallace,  4  Sneed,  405 ;  Resor  v.  Resor,  9  Ind.  347 ;  Lench  v.  Lench,  10 
Ves.  511;  Woodford  r.  Stephens,  51  Mo.  443  ;  Tilford  v.  Torn-y,  53  Ala. 
120;  Gainus  v.  Cannon,  42  Ark.  503;  Slocum  v.  Slocum,  9  Brad.  (111.) 
142;  Loften  v.  Witboard,  92  111.  401;  Radcliff  v.  Radford,  90  Ind.  482; 
Derry  v.  Derry,  98  Ind.  324 ;  Lord  v.  Bishop,  101  Ind.  334 ;  Mitchell  v. 
Colglazier,  106  Ind.  466  ;  Broughton  v.  Brand,  94  Mo.  109 ;  Bowen  v. 
McKean,  82  Mo.  594,  pro  tanto ;   City  Nat.  Bank  v.  Hamilton,  34  N.  J. 


(N.  H.),  39  Atl.  433;  Francis  v. 
Cline  (Va.),  31  S.  E.  10.  If  a  hus- 
band invests  his  wife's  statutory 
separate  estate  in  land  without  her 
assent,  and  takes  the  legal  title  jointly 
to  himself  and  his  wife,  he  also  con- 
tributing to  the  purchase,  it  is  a  trust 
pro  tanto  for  the  wife  to  the  extent  of 
her  contribution.  Jones  v.  Elkins, 
143  Mo.  017  ;  Martin  v.  Remington 
(Wis.),  70  N.  W.  014.  Under  an 
agreement  between  creditors  to 
purchase  their  debtor's  realty,  and 
that  only  one  of  them  bid  at  the 
sale  thereof,  a  resulting  trust  arises 
in  favor  of  the  other  creditors  who 
do  not  bid,  but  tender  their  shares 
of  the  purchase-money.  Kennedy 
V.  McCloskey,  170  Penn.  St.  3.")4. 

A  constructive  trust  does  not 
arise,  under  the  statute  of  frauds, 
•when  one-half  the  purchase  price  is 
agreed  to  be  paid  by  another  upon 
examination  of  title,  and  the  latter 


does  not  then  pay  his  share.    Taylor 
V.  Kelly,  103  Cal.  178. 

In  the  West,  an  entrj'  upon  public 
lands  made  by  one  person,  though  it 
cannot  be  made  for  another's  exclu- 
sive benefit,  may  be  shown  to  be  in 
trust  for  himself  and  another  person. 
Sweeney  v.  Sparling,  81  Iowa,  433 ; 
Reinhart  v.  Bradshaw,  19  Xev.  255; 
Robinson  v.  Jones,  31  Neb.  20.  A 
mining  claim  is  real  estate,  and  is 
transferable  only  by  operation  of  law 
or  by  a  written  instrument;  but 
when  a  part-owner  secretly  takes 
a  patent  therefor  in  his  own  name, 
it  is  held  in  trust  for  all  the  owners. 
Brundy  v.  Mayfield,  15  Mont.  201  ; 
IMoore  v.  Ilamerstag,  109  Cal.  122  ; 
Hayes  v.  Carroll  (Minn.),  76  N.  W. 
1017.  An  agreement  to  locate  a 
mining  claim  for  another's  benefit 
need  not  be  in  writing.  Book  v. 
Justice  M.  Co.,  58  F.  R.  106,  119; 
Reagan  r.  McKibben  (S.  D.),  76 
N.  W.  943. 

167 


§  128.]  RESULTING  TRUSTS.  [CHAP.   V. 

property  used  is  such  as  the  husband  has  a  right  to  reduce 
to  possession  and  make  his  own,  and  his  conduct  evinces  an 
intent  to  do  this  ^) ;  or  if  a  man  purchase  an  estate  with  the 
money  of  a  woman  with  whom  he  cohabits,  a  trust  results  to 
her.  2  If  a  widow  purchase  an  estate  in  her  own  name  with 
funds  of  her  deceased  husband,  a  trust  results  to  his  chil- 
dren ;  3  and  so  if  a  father  purchase  in  his  own  name  or  the 
name  of  a  third  person  with  funds  of  his  children;*  and  the 
rule  is  the  same  if  purchases  are  made  out  of  the  savings  of 
the  wife's  separate  property;  but  if  the  purchase  is  made 
from  savings  out  of  an  allowance  made  by  the  husband,  or 
out  of  the  wife's  earnings,  no  trust  will  result.^  Even  where 
the  entry  of  land  in  the  name  of  one  for  the  use  of  another  is 
contrary  to  statute,  the  person  with  whose  money  the  land 
was  bought,  if  innocent  of  the  wrongful  entry,  may  claim  a 
resulting  trust.  ^ 

§  128.  In  all  these  cases  the  transaction  is  looked  upon  as 
a  purchase  paid  for  by  the  cestui  que  trust,  as  the  beneficial 
interest  in  the  money  paid  belonged  to  him;'  and  the  iden- 
tity of  the  money  does  not  consist  in  the  specific  pieces  of 
money  or  bills,  but  in  the  general  character  of  the  fund  out 
of  which  the  payment  is  made,  and  the  fund  may  be  followed 
so  long  as  its  general   character   can   be  identified.^    But 

Eq.  158;  Price  v.  Brown,  98  N.  Y.  388;  Cade  v.  Davis,  96  N.  C.  139 ; 
McKamey  v.  Thorp,  61  Tex.  648;  Parker  v.  Coop,  60  Tex.  Ill,  and  cases 
cited  ;  John  v.  Battle,  58  Tex.  591 ;  Heath  v.  Slocum,  115  Pa.  St.  549 ; 
Holgate  V.  Eaton,  116  U.  S.  33. 

1  Cumraings  v.  Cummings,  143  Mass.  340-342. 

2  James  v.  Holmes,  4  De  G.,  F.  &  J.  470. 

8  Fox  V.  Doherty,  30  Iowa,  334 ;  Roberts  v.  Opp,  56  HI.  34 ;  Musham 
V.  Musham,  87  111.  80. 

*  Robinson  v.  Robinson,  22  Iowa,  427;  Eastham  v.  Roundtree,  56 
Tex.  110. 

6  Raybold  v.  Raybold,  20  Penn.  St.  308;  Merrill  r.  Smith,  37  Maine, 
394  ;  Henderson  v.  Warmack,  27  Miss.  830 ;  Farley  v.  Blood,  10  Foster, 
354. 

«  Buren  v.  Buren,  79  Mo.  538. 

'  Lench  v.  Lench,  10  Ves.  517;  Trench  v.  Harrison,  17  Sim.  111. 

8  United  States  v.  "Waterborough,  Davies,  154;  Goepp's  App.,  15 
168 


CHAP,  v.]       PURCHASE  WITH  TRUST-MONEY.         [§  128. 

when  the  means  of  identification  fail,  as  when  an  executor 
converts  an  estate  into  money  and  mixes  it  with  the  general 
mass  of  his  own  money,  and  there  is  no  identifying  the  par- 
ticular money  of  the  trust,  the  distributees  or  legatees  have 
no  preference  over  his  other  creditors,  but  they  must  prove 
their  claims.'  If,  however,  a  trustee  purchase  an  estate 
with  trust  funds,  and  add  funds  of  his  own  to  the  purchase- 
money,  a  trust  will  result  to  the  cestui  que  trust;  and  the 
burden  will  be  on  the  trustee  to  show  the  amount  of  his  own 
funds  in  the  purchase,  otherwise  the  cestui  que  trust  will 
take  the  whole. ^  If  the  purchase  is  partly  with  trust  funds 
and  partly  not,  the  cestui  has  a  lien  on  the  whole  property 
for  the  amount  of  the  fund  misapplied. ^  It  has  been  said 
in  some  cases  that  the  cestui  que  trust  has  no  interest  in  the 
property  purchased  with  the  trust  fund  in  the  name  of  the 
trustee,  but  ohIt/  a  lien  on  the  property  in  the  nature  of  a 
vendor's  lien  for  the  purchase-money,  with  a  right  to  a 
decree  for  a  sale  to  reimburse  the  trust  fund.*  This  is  cer- 
tainly one  of  the  rights  of  the  cestui  que  trust,  if  he  elects  to 
proceed  in  that  manner,  and  he  may  hold  the  trustee  respon- 
sible, if  there  is  a  loss  on  such  sale.  On  the  other  hand, 
the  trustee  can  make  no  profit  to  himself  by  dealing  with  the 
trust  fund ;  ^  and,  if  he  makes  a  purchase  with  it,  the  cestui 
que  trust  can  elect  to  treat  the  property  as  a  part  of  the  trust 
property,  and  he  is  entitled  to  all  the  advantages  of  the 
speculation  or  investment  thus  made  with  the  property  in 

Penn.  St.  428;  Thompson's  App.,  22  id.  16;  McLarren  v.  Brewer,  51 
Maine,  402 ;  De  Bevoise  v.  Sandford,  HofE.  194  ;  Campbell  r.  Walker, 
5  Yes.  678;  Downes  r.  Grazebrook,  3  Mer.  200;  Sanderson  r.  "Walker, 
13  Ves.  601 ;  Overseers  of  the  Poor  v.  Bank  of  Virginia,  2  Gratt. 
544. 

^  Thompson's  App.,  22  Penn.  St.  16;  Mc Comas  r.  Long,  85  lud. 
552. 

*  Russell  V.  Jackson,  10  Hare,  209  ;  McLarren  v.  Brewer,  51  Maine, 
402 ;  Seaman  v.  Cook,  14  111.  505 ;  Farmers,  &c.  Bank  r.  King,  57  Penn. 
St.  202;  Persch  v.  Quiggle,  id.  247. 

'  ^lunro  r.  Collins,  Oo  Mo.  42. 

*  Wallace  v.  Duffield,  2  Ser.  &  R.  529;  Wallace  r.  McCiUlough,  1 
Rich.  Ch.  426. 

*  Landis  v.  Saxton,  89  Mo.  375 ;  Ward  v.  Davidson,  id.  445. 

169 


§  128.]  RESULTING   TEUSTS.  [CHAP.   V. 

the  name  of  the  trustee.^  No  trust  results  to  the  holder  of 
])roj)erty  (11.)  from  the  fact  that  money  has  been  given  to  B. 
by  C.  in  order  that  B.  may  purchase  the  said  property.  H. 
cannot  offer  a  deed  and  demand  the  money.  ^  So  where 
A.  sells  land  in  which  he  (A.)  has  an  interest  as  well  as  E. , 
A.  giving  a  bond  for  the  making  of  a  future  good  title  to  the 
whole,  and  then  investing  the  money  received  in  other  prop- 
erty, there  is  no  trust  for  E.  in  this  property ;  the  purchase- 
money  was  obtained  by  A.,  not  in  consideration  for  E. 's 
interest  in  the  land,  but  in  consideration  for  the  promise 
made  by  A.  in  his  bond.^  And  if  trust-money  is  expended 
not  in  the  purchase  of  land  but  in  improvements  upon  it,  no 
trust  results  to  the  owner  of  the  money.  ^  If  one  who  stands 
in  no  fiduciary  relation  to  another  appropriates  the  other's 
money,  and  invests  it  in  real  estate  or  other  property,  no 
trust  results  to  the  owner  of  the  money. ^  There  is  no  doubt 
of  this  principle  upon  all  the  cases,  but  there  is  some  ques- 
tion in  the  books  as  to  what  is  a  fiduciary  relation,  as  where 
a  clerk  pilfered  money  from  the  store  of  his  employer  and 
invested  it  in  real  estate,  it  was  held  that  there  was  no  such 
resulting  trust;  that  the  employer  could  compel  a  convey- 
ance of  the  land.^  But  where  a  clerk  in  a  bank  embezzled 
money,  and  invested  it  in  stocks  in  the  names  of  his  sisters 
as  mere  volunteers,  it  was  held  that  a  trust  resulted  to  the 
owners  of  the  money,  and  that  equity  would  execute  it  by 
compelling  a  conveyance;^  and  this  would  seem  to  be  the 
better  opinion,  as  a  clerk  certainly  holds  a  confidential  rela- 
tion to  his  employer.  In  Newton  v.  Porter,  it  was  held  that 
the  holders  of  the  proceeds  of  stolen  property  might  be 
charged  as  trustees  for  the  owner,  and  there  would  seem  to 

1  Hill  on  Trustees,  534;  Lewinon  Trusts,  227  (5th  Lond.  ed.);  Lench 
V.  Lench,  10  Yes.  511;  19  Ves.  58;  Weaver  v.  Fisher,  110  111.  146;  Beuti). 
Priest,  86  Mo.  475. 

2  Rogers  v.  Rogers,  63  Iowa,  92.      ^  Hadley  v.  Stuart,  62  Iowa,  271. 

4  Bodwell  V.  Nutter,  63  N.  H.  446. 

5  Hawthorne  v.  Brown,  3  Sneed,  462  ;  Ensley  v.  Ballentine,  4  Humph. 
233. 

^  Campbell  v.  Drake,  4  Tred.  94  ;  Pascoag  Bank  ?•.  Hunt,  3  Edw.  583. 
'  Bank  of  America  r.  Pollock,  4  Edw.  215 ;  post,  §  135. 

170 


CHAP,   v.]  PURCHASE   WITH   TRUST- MONEY.  [§  129. 

be  no  principle  to  the  contrary.^  It  may  depend,  however, 
uijou  the  extent  to  which  the  clerk  is  trusted.  In  Lelimann 
V.  Rothbarth  ^  the  husband  of  a  trustee  taking  upon  himself 
the  management  of  the  estate  was  held  to  account  as  trustee 
to  the  cestui  for  funds  coming  to  him  as  self-constituted 
agent  for  the  true  trustee,  (a) 

§  129.  If  a  person  standing  in  a  fiduciary  relation  makes 
use  of  his  position  to  purchase  an  interest  in  the  trust  prop- 
erty with  his  own  funds,  as  a  reversion,  a  junior  or  senior 
mortgage,  or  other  interest  from  a  third  person;  or  if  he 
purchase  other  property  so  immediately  connected  with  the 
trust  estate,  that  it  must  be  used  with  the  trust  estate,  and 
the  independent  ownership  of  which  would  seriously  affect 
the  use  and  value  of  the  trust  property,  he  cannot  retain  the 
same  for  his  own  benefit,  but  he  must  hold  it  upon  a  result- 
ing trust  for  his  beneficiary. 3  The  prohibition  of  the  pur- 
chase of  trust  property  by  the  trustee  does  not  depend  on  any 
question  of  fraud,  but  is  made  absolute  to  avoid  the  pos- 
sibility of  fraud.*  The  temptation  of  self-interest  is  too 
powerful  and  insinuating  to  be  trusted.     A  trustee  must  put 

^  Newton  v.  Porter,  5  Lansing,  417;  Thompson  v.  Parker,  3  ^lason, 
332;  Hoffman  v.  Canow,  22  Wend.  285;  Bassett  v.  Spofford,  45  N.  Y.  387; 
Silsbury  r.  IVIcCoon,  3  Comst.  579. 

2  111  111.  185. 

8  Holt  c.  Holt,  1  Ch.  Cas.  190;  Nesbitt  v.  Tredennick,  1  Ball  &  B.  46; 
Greenlaw  v.  King,  3  Beav.  9;  10  L.  J.  (x.  s.)  Ch.  129 ;  Van  Epps  v.  Van 
Epps,  9  Paige,  237;  Torrey  v.  Bank  of  Orleans,  9  Paige,  649;  Tanner  r. 
Elworthy,  4  Beav.  487;  Waters  v.  BaUey,  2  Y.  &  C.  (N.  C.)  Ch.  219; 
Geddings  v.  Geddings,  3  Russ.  241 ;  Dickinson  ?'.  Codwise,  1  Sandf.  Ch. 
226;  Settembre  r.  Putnam,  30  Cal.  490;  Jenkins  v.  Frink,  30  Cal.  ?86; 
Hall  r.  Vanness,  49  Penn.  St.  457;  Harrold  r.  Lane,  53  id.  269;  Heath  r. 
Page,  63  id.  108;  Campbell  v.  Campbell,  21  Mich.  459 ;  King  i'.  Cushnian, 
43  111.  31 ;  Clark  v.  Cantwell,  3  Head,  202;  Holmes  r.  Campbell,  10  Minn. 
40  ;  Wells  v.  Francis,  7  Col.  396;  Shaw  v.  Shaw,  86  Mo.  594. 

*  Downs  V.  Richards,  4  Del.  Ch.  416;  Munsou  v.  S.  G.  &  C.  R.  R.  Co., 
103  N.  Y.  58. 

(a)  Fraud,  as  the  foundation  of  veyance,  and  his  equitable  interest 
a  resulting  trust,  may  be  waived  by  be  thereby  extinguished.  Thomp- 
the  grantor's  subsequent  act  or  con-    sou  v.  Marley,  102  Mich.  476. 

171 


§  130.]  RESULTING  TRUSTS.  [CHAP.   V. 

himself  in  a  position  where  his  private  profit  will  oppose  the 
interests  of  the  estate.^  If  a  trustee  buys  an  outstanding 
claim  against  the  trust  property,  the  transaction  will  be 
treated  as  a  payment  only,  and  he  will  be  allowed  only  what 
he  gave. 2  Railway  directors  cannot  deal  with  the  property 
for  their  individual  benefit,  and  a  sale  of  it  to  any  one  of  the 
board  would  be  voidable  in  equity  at  the  instance  of  any  one 
interested  in  the  road.^  A  trustee  may  not  buy  for  himself 
an  outstanding  title  to  the  estate.^  One  in  a  fiduciary  posi- 
tion must  not  so  conduct  himself  as  to  bring  his  private 
interests  in  conflict  with  the  duties  of  his  office.  If  an 
administrator  buys  land  sold  to  pay  a  debt  due  his  intestate, 
the  heirs  and  distributees  can  elect  to  take  the  land  and 
allow  him  his  bid.^  A  purchaser  from  a  trustee  who  has 
acquired  the  trust  property  stands  in  no  better  position  than 
the  trustee,  if  said  purchaser  has  notice  of  the  facts. ^  A 
mere  agent,  who  purchases  a  reversion  in  the  lands  of  his 
principal  at  a  public  sale  from  third  persons  with  his  own 
money,  will  not  be  held  as  a  trustee,  unless  he  purchase 
under  some  agreement  to  that  effect;'^  and  the  same  rule 
applies  to  a  tenant  in  common.  ^ 

§  130.    The   rule  embraces   personal   property  as  well  as 
real  estate;  and  if  a  man  purchase  a  bond, ^ annuity, ^*^  stock, ^^ 

1  Russell  V.  Peyton,  4  Brad.  (111.)  481. 

2  Rankin  v.  Bancroft  &  Co.,  114  111.  441;  Oilman  v.  Healey,  49  Hun, 
274. 

8  Little  Rock  &  F.  S.  Ry.  Co.  v.  Page,  35  Ark.  304  ;  Duncomb  v.  N.  Y. 
H.  &  No.  R.  R.  Co.,  84  N.  Y.  190. 

*  Baker  v.  S.  &  W.  Mo.  R.  Co.,  86  Mo.  75. 

6  Jones  V.  Graham,  36  Ark.  383. 

«  Cavagnaro  v.  Don,  63  Cal.  231. 

'  Kennedy  v.  Keating,  34  Mo.  25. 

8  Keller  v.  Auble,  58  Penn.  St.  410;  Mandeville  v.  Solomon,  33  Cal.  38. 

»  Ebrand  v.  Dancer,  2  Ch.  Cas.  26  ;  1  Eq.  Ab.  382. 
10  Rider  v.  Rider,  10  Ves.  363,  and  cases  cited;  2  Mad.  Ch.  Pr.  101. 

"  Ibid. ;  Lloyd  v.  Read,  1  P.  Wms.  607 ;  Sidmouth  v.  Sidmouth,  2  Beav. 
447;  Garrick  v.  Taylor,  29  Beav.  79;  4  De  G.,  F.  &  J.  159;  Beecher  v. 
Major,  2  Dr.  &  Sm.  431 ;  Ex  parte  Houghton,  17  Ves.  253 ;  Creed  v.  Lan- 
caster Bank,  1  Ohio  St.  1. 
172 


CHAP,    v.] 


PURCHASE   WITH   TRUST-MONEY. 


[§  131. 


mortgage,  or  other  personal  interest,^  in  the  name  of  a  third 
person,  the  equitable  ownership  results  to  the  person  from 
whom  the  consideration  moves;  but  it  is  said  that  a  result- 
ing trust  cannot  be  set  up  in  personal  property  perishable 
in  its  nature.- 


§  131.  Nor  can  a  resulting  trust  be  set  up  if  it  would 
break  in  upon  the  policy  of  the  law,  or  a  public  statute;^  as 
if  an  alien  forbidden  to  hold  land  should  pay  the  purchase- 
money  and  take  the  deed  to  a  stranger,  a  resulting  trust  in 
his  favor  would  not  be  enforced  by  the  courts.*  (a)     But  a 

^  Ibid. ;  Kelley  v.  Jenness,  50  Maine,  455. 

2  Union  Bank  v.  Baker,  8  Humph.  447. 

'  Ex  parte  Yallop,  15  Ves.  67;  Ex  parte  Houghton,  17  Ves.  251; 
Redington  v.  Redington,  3  Ridg.  181;  Groves  r.  Groves,  3  Y.  &  J.  163; 
Camden  v.  Anderson,  5  T.  II.  709 ;  Proseus  v.  Mclntre,  5  Barb.  425;  Ford 
V.  Lewis,  10  B.  Mon.  127;  Baldwin  v.  Campfield,  4  Halst.  Ch.  891;  Cutler 
V.  Tuttle,  19  X.  J.  Eq.  562. 

*  Leggett  V.  Dubois,  5  Paige,  114 ;  Hubbard  v.  Goodwin,  3  Leigh,  492 ; 
Philips  V.  Crammond,  2  Wash.  C.  C.  441 ;  Taylor  v.  Benham,  5  How. 
U.  S.  270;  Farley  v.  Shippen,  Wythe,  135;  Alsworth  v.  Cordby,  3  Miss. 
32 ;  Childers  v.  Childers,  1  De  G.  &  J.  482 ;  Phillpotts  v.  Phillpotts,  10 
C.  B.  85.  But  if  such  conveyance  is  not  intended  as  a  fraud  upon  the 
law,  but  is  taken  by  an  agent  or  attorney  of  the  alien  in  his  own  name 
without  authority,  equity  will  protect  the  rights  of  the  alien.  Austin  v. 
Brown,  6  Paige,  448;  McCow  v.  Galbrath,  7  Rich.  Law,  74. 


(a)  In  Texas,  it  seems  that  a  re- 
sulting trust  does  not  arise  for  an 
alien  whose  money  another  invests 
in  land,  although  he  may  recover  a 
judgment  for  the  money  itself  by 
suit,  and  such  judgment  may  be  a 
lien  upon  the  land.  Zundell  v.  Gess, 
73  Tex.  144.  Equity  neither  creates 
nor  enforces  a  resulting  trust  con- 
trary to  the  ascertained  intent  of  the 
parties.  Morris  i\  Clare,  1.32  Mo. 
232,  236  ;  Ward  v.  Ward,  59  Conn. 
188 ;  Zimmerman  v.  Barber,  176 
Penn.  St.  1.  A  resulting  trust  may, 
however,  arise  in  a  surplus  remain- 
ing after  the  purposes  of  the  trust 


have  failed  or  are  fully  accom- 
plished. See  Smith  c.  Cooke,  [1891] 
A.  C.  297;  Bork  r.  Martin,  132 
X.  Y.  280  ;  Buffington  r.  Maxam, 
152  Mass.  477;  Ripley  v.  Seligman, 
88  Mich.  177 ;  Meyer  v.  Ilolle,  83 
Texas,  623  ;  Cagwin  r.  Buerkle,  55 
Ark.  5.  Thus,  an  assignment  for 
creditors,  which  contains  no  ulti- 
mate declaration  of  trust  for  the 
assignors,  gives  rise  to  a  resulting 
trust  in  the  surplus  in  favor  of  the 
assignors,  in  case  there  is  more  tlian 
enough  to  pay  the  debts.  Smith  r. 
Cooke,  supra ;  45  Ch.  D.  38;  62  L.  T. 
456.  If  the  donee  is  dead  when  a 
173 


§  132.]  RESULTING   TRUSTS.  [CHAP.   V. 

slave,  who  could  not  acquire  property,  purchased  land  in  the 
name  of  a  free  person  with  the  assent  of  his  master,  and 
afterwards  becoming  free,  the  resulting  trust  was  enforced 
in  his  favor;  1  and  so  if  the  disability  of  the  alien  is  removed 
by  naturalization  or  otherwise,  he  may  enforce  a  trust  created 
while  he  was  under  disability. ^ 

§  132.  Lord  Hardwicke  doubted  whether  the  application 
of  the  rule  was  not  confined  to  a  single  purchaser  ;3  but  it 
has  been  expressly  decided  and  long  acted  upon,  that  if 
several  make  the  purchase,  pay  the  consideration,  but  take 
the  title  in  the  name  of  a  stranger,  the  trust  will  result  to 
them  jointly.*  The  same  rule  applies  if  several  pay  the 
consideration,  and  take  the  title  to  one  of  their  number.  If 
the  parties  contribute  unequally  to  the  payment  of  the  con- 
sideration, the  trust  results  to  each  of  them  in  proportion  to 
the  amount  paid  by  each.^    In  these  cases  it  is  settled  that 

^  Leiper  v.  Hoffman,  26  Miss.  615. 

2  Osterman  i;.  Baldwin,  6  Wall.  116. 

8  Crop  V.  Norton,  Barn.  179 ;  9  Mod.  233 ;  2  Atk.  74. 

4  Baumgartner  v.  Guessfeld,  38  Mo.  36 ;  Wray  v.  Steele,  2  V.  &  B. 
388;  Ross  v.  Hegeman,  2  Edw.  373;  Larkins  v.  Bhoades,  .5  Porter,  196; 
Powell  V.  Monson  and  Brim.  Manuf.  Co.,  3  Mason,  590  ;  Letcher  v.  Letcher, 
4  J.  J.  Marsh.  590;  Keaton  v.  Cobb,  1  Dev.  Ch.  439. 

5  Rigden  v.  Walker,  3  Atk.  735  ;  Lake  v.  Gibson,  1  Eq.  Cas.  Ab.  291 ; 
Botsford  V.  Burr,  2  Johns.  Ch.  405 ;  Quackenbush  v.  Leonard,  9  Paige, 
334 ;  Jackson  v.  Moore,  6  Cow.  706 ;  Stewart  v.  Brown,  2  Serg.  &  R.  461 ; 
Morey  v.  Herrick,  18  Penn.  St.  129  ;  Buck  v.  Swazey,  35  Maine,  41;  Kelley 
V.  Jenness,  50  id.  455;  Powell  v.  Monson  &  Brim.  Manuf.  Co.,  3  Mason, 
347;  Pierce  v.  Pierce,  7  B.  Mon.  433;  Letcher  v.  Letcher,  4  J.  J.  Marsh. 
590;  Shoemakers.  Smith,  11  Humph.  81;    Bernard  v.  Bongard,  Harr. 

trust  is  created  by  deed,  there  is  a  no  resulting  trust   when  the  legal 

resulting  trust  for  the  settlor.     Re  estate  does  not  pass  because  of  the 

Tilt,  74  L.  T.  163.    So,  when  a  trust  invalidity  of  the  attempted  convey- 

is   not    sufficiently    declared,    there  ance,  even  when  there  is  a  valuable 

may  be  a  resulting  trust   for  the  consideration  therefor.     Churcher  v. 

settlor's  benefit.    7?e  Wilcock;  Wil-  Martin,  42  Ch.  D.  312;  Trustees  v. 

cock  V.  Johnson,  62  L.  T.  317 ;  Wood-  Jackson  Square  Church,  84  Md.  173 ; 

ruff  V.  Marsh,  68  Conn.  125 ;  Johnson  Moore  v.  Horsley,  156  111.  36. 
V.  Johnson,  92  Tenu.  559.    There  is 
174 


CHAP,   v.]  PURCHASE   WITH   TRUST-MONEY.  [§  133. 

a  general  contribution  towards  a  purchase  is  not  sufficient; 
but  the  person  claiming  a  resulting  trust  must  show  that  he 
paid  some  specific  sum,  for  some  distinct  interest  in,  or 
aliquot  part  of,  the  estate,  as  for  a  specific  share,  as  one-half 
or  one-quarter,  or  other  particular  fraction  of  the  whole;  or 
for  a  particular  interest,  as  for  an  estate  for  life  or  years,  or 
in  remainder  in  the  whole  estate. ^  Where  two  contribute 
funds  and  the  ])ro))ortions  do  not  appear,  the  presumption  is 
that  the  proportions  are  equal.  ^ 

§  133.  The  trust  must  result,  if  at  all,  at  the  instant  the 
deed  is  taken,  and  the  legal  title  vests  in  the  grantee.  No 
oral  agreements,  and  no  payments,  before  or  after  the  title 
is  taken,  will  create  a  resulting  trust,  unless  the  transaction 
is  such  at  the  moment  the  title  passes  that  a  trust  will  result 
from   the   transaction    itself.^  (a)     But   if    the    transaction 

Ch.  130 ;  Purdy  v.  Purdy,  3  I\Id.  Ch.  547;  Seaman  v.  Cook,  14  111.  505 ;  Dow 
V.  Jewell,  18  N.  H.  310;  Hall  v.  Young,  37  N.  H.  134;  Pinney  v.  Fellows, 
15  Vt.  525;  Brothers  v.  Porter,  6  B.  Mon.  106;  Bogert  v.  Perry,  17  Johns. 
351;  Jackson  v.  Bateman,  2  Wend.  570;  Cloud  v.  Ivie,  28  Mo.  578; 
Baumgartner  r.  Guessfold,  38  Mo.  36;  Union  College  v.  Wheeler,  5  Lans. 
160 ;  McDonald  v.  McDonald,  24  Ind.  08 ;  Frederick  v.  Haas,  5  Nev.  389  ; 
Case  V.  Codding,  38  Cal.  191 ;  Clark  v.  Clark,  43  Vt.  685. 

1  ]\IcGowan  v.  McGowan,  14  Gray,  119;  Buck  v.  Warren,  id.  122,  n. 
Baker  v.  Vining,  30  Maine,  121;  Sayre  v.  Townsends,  15  Wend.  647; 
White  V.  Carpenter,  2  Paige,  217  ;  Perry  v.  McHenry,  13  111.  227 ;  Crop 
V.  Norton,  2  Atk.  74;  Reynolds  v.  Morris,  17  Ohio  St.  510;  Cutler  v. 
Tuttle,  19  N.  J.  Ch.  561  ;  1  Lead.  Ca.  Eq.  276 ;  Billings  v.  Clinton,  6 
Rich.  (S.  C.)  90 ;  Olcott  c.  Bynum,  17  Wall.  44. 

^  Shoemaker  v.  Smith,  11  Humph.  81. 

3  See  §  126 ;  Frickett  o.  Durham,  109  Mass.  422 ;  Rogers  v.  Murray, 
3  Paige,  390  ;  Dudley  v.  Batchelder,  53  Me.  403;  Connor  v.  Lewis,  10 

(a)  To  constitute  a  simple  result-  Loomis,  161  Mass.  161 ;  Champlin  v. 
ing  trust,  the  money  must  be  paid  Champlin,  136  111.  309;  Summers 
or  secured  at  the  time  of  the  pur-  v.  INIoore,  113  N.  C.  394.  But  when 
chase  ;  the  trust  arises  from  the  a  trustee  invests  trust  funds  in  real 
payment,  and  not  from  the  parol  estate,  the  cestui  que  trust\<!  equity  to 
agreement.  Collins  v.  Carson  (N.  J.  charge  the  lands  is  not  dependent 
Eq.),  30  Atl.  Rep.  862  ;  Levi  u.  upon  payment  at  the  time  of  the 
Evans,  57  F.  R.  077;  Osgood  v.  purchase,  but  the  right  may  be  en- 
Eaton,   62  N.   H.    512;    Ryder   o  forced  whether  the  payment  is  made 

175 


§  133.] 


RESULTING   TRUSTS. 


[chap.  V. 


creates  a  trust,  a  subsequent  act  may  enlarge  its  effect,  as 
by  removing  a  mortgage  to  which  the  trust  was  subject.^ 
And  where  an  administrator  out  of  the  assets  in  his  hands 
pays  the  balance  due  on  land  bought  by  the  deceased,  and 
takes  title  to  himself,  the  heirs  can  hold  him  as  a  trustee.  ^ 

Maine,  275;  Buck  v.  Swazey,  35  id.  51  ;  Pinnoch  v.  Clough,  16  Vt.  500; 
Taliaferro  v.  Taliaferro,  6  Ala.  404;  McGowan  v.  McGowan,  14  Gray,  119  ; 
Barnard  v.  Jewett,  97  Mass.  87 ;  Freeman  v.  Kelly,  1  Hoff.  90 ;  Foster 
r.  Trustees,  &c.,  3  Ala.  302  ;  Forsyth  v.  Clark,  3  Wend.  637  ;  Steere  v. 
Steere,  5  Johns.  Ch.  1;  Botsford  v.  Burr,  2  Johns.  Ch.  408;  Jackson  v. 
Moore,  6  Cow.  706 ;  White  v.  Carpenter,  2  Paige,  218 ;  Niver  v.  Crane, 
98  N.  Y.  40  ;  Page  v.  Page,  8  N.  H.  187 ;  Buck  v.  Pike,  2  Fairf .  9 ; 
Graves  v.  Dugan,  6  Dana,  331  ;  Wallace  v.  Marshall,  9  B.  Mon.  148;  Gee 
V.  Gee,  2  Sneed,  395;  Kelly  ('.  Johnson,  28  Mo.  249  ;  Williard  v.  Williard, 
56  Penn.  St.  119  ;  Nixon's  App.,  63  id.  279  ;  Cutler  v.  Tuttle,  19  N.  J. 
Eq.  561;  Wheeler  v.  Kirtland,  23  id.  13;  Tunnard  v.  Littell,  id.  264; 
Sheldon  v.  Harding,  44  111.  68 ;  Westerfield  v.  Kiramer,  82  Ind.  369 ; 
Kendall  c.  Mann,  11  Allen,  15;  Gerry  v.  Stimson,  60  Me.  186;  Forsyth  v. 
Clark,  3  Wend.  657;  Davis  v.  Wetherell,  11  Allen,  19,  n. ;  Miller  v.  Blose, 
30  Grat.  (Va.)  744;  Billings  r.  Clinton,  6  Rich.  (S.  C.)  90;  Boozer  v. 
Teague,  27  S.  C.  349;  Richardson  v.  Day,  20  S.  C.  412;  Parker  v.  Coop, 
60  Tex.  Ill  ;  Du  Val  v.  Marshall,  3  Ark.  230;  Rhea  v.  Tucker,  56  Ala. 
450;  McClure  v.  Doak,  6  Baxter  (Tenn.),  364;  Sullivan  v.  Sullivan,  86 
Tenn.  376.  A  subsequent  agreement  will  not  raise  such  a  trust.  Knox 
V.  McFarran,  4  Col.  586. 

^  Leonard  v.  Green,  34  Minn.  141. 

2  Jones  V.  Slaughter,  96  N.  C.  541. 


before  or  after  the  purchase,  so  long 
as  the  trust  funds  can   be  traced 
and  bona  Jide  purchasers  have  not 
acquired  rights  in  the  land.     Leh- 
man V.  Lewis,  62  Ala.  129;  Moore 
V.     Moore     (Miss.),    19     So.    953 
Maroney  v.  Maroney,  97  Iowa,  711 
Webb   V.  Bailey,  41   W.  Va.  463 
See  Bourke  v.  Callanan,  160  Mass 
195 ;  Gray  r.  Jordan,  87  IMaine,  140 
Taylor   v.   Miles,  19   Oregon,  550 
Barger  v.  Barger,  30  id.  268;  Reeves 
r.  Evans  (N.  J.  Eq.),  34  Atl.  477 
Gilchrist  v.  Brown,  165  Penn.  St 
275;  Keith  v.  Miller,  174  111.   64 
HaiTis  V.  Elliott  (W.  Va.),  32  S.  E 
176 


176;  Greensboro  Nat.  Bank  v.  Gil- 
mer, 117  N.  C.  416  ;  Kelly  v. 
McNeill,  118  N.  C.  349;  Jones  v. 
Hughey,  46  S.  C.  193;  Bright  v. 
Knight,  35  W.  Va.  40.  A  judg- 
ment  creditor  of  the  trustee,  deriv- 
ing title  under  an  execution,  is  not 
such  a  purchaser  for  value.  Lewis  v. 
Taylor,  96  Ky.  556;  Cobb  v.  Tram- 
mell,  9  Tex.  Civ.  App.  527.  The 
same  money  that  was  paid  need  not, 
in  general,  have  been  invested  in 
the  land  in  order  to  establish  a 
resulting  trust.  Rarick  v.  Van- 
devier  (Col.),   52  Pac.   743. 


CHAP,    v.]  PURCHASE    WITH   TRUST-MONEY.  [§  133. 

And  where  the  money  of  another  in  the  hands  of  the  pur- 
chaser is  his  only  reliance  lor  procuring  the  title,  he  cannot 
escape  from  a  resulting  trust  l)y  paying  a  little  of  his  own 
money  at  the  time,  and  the  remainder  in  trust-money  after- 
ward.^ If  two  agree  to  purchase,  and  one  furnishes  all  the 
money  and  takes  the  title  to  himself,  no  trust  results  to  the 
other. 2  And  so  if  two  agree  to  jjurchase,  and  one  pays  the 
whole  consideration-money,  and  the  title  is  taken  to  the  two, 
no  trust  results  to  the  one  who  paid  the  whole ;  he  can  only 
enforce  repayment  of  one-half  the  consideration-money. ^ 
There  must  be  an  actual  payment  from  a  man's  own  money, 
or  what  is  equivalent  to  payment  from  his  own  money,  to 
create  a  resulting  trust.*  And  the  money  must  be  advanced 
and  paid  in  the  character  of  a  purchaser ;  for  if  one  pay  the 
purchase-money  by  way  of  loan  for  another,  and  the  convey- 
ance is  taken  to  the  other,  no  trust  will  result  to  the  one 
who  thus  pays  the  purchase-money;^  on  the  other  hand,  if 

1  McLaughlin  v.  Fulton,  104  Penn.  St.  161. 

2  Brooks  r.  Fowle,  U  N.  H.  248;  Tebbetts  v.  Tilton,  31  N.  H.  273; 
Edwards  c.  Edwards,  39  Penn.  St.  369  ;  Coppage  v.  Barnett,  31  Miss.  621  ; 
Cook  v.  Bronaugh,  8  Eng.  183;  Fowke  v.  Slaughter,  3  A.  K.  Marsh.  56. 

8  2  Sugd.  V.  &  P.  575  (13th  ed.)  ;  but  see  Butler  r.  Rutledge,  2 
Cold.  4. 

4  Wheeler  t;.  Kirtland,  23  N.J.  Eq.  13;  Tunnard  v.  Littell,  id. ;  Ptoberts 
V.  Ware,  40  Cal.  634;  Page  v.  Page,  8  N.  II.  187;  Gomez  v.  Tradesman's 
Bank,  4  Sandf.  S.  C.  106 ;  Coates  v.  Woodworth,  13  111.  634 ;  Beck  v. 
Graybill,  4  Casey,  66 ;  Reeve  v.  Strawn,  14  HI.  94;  Ferguson  v.  Sutphen, 
8  Gil.  547;  Lounsbury  r.  Purdy,  16  Barb.  380;  Runnells  v.  Jackson,  1 
How.  (:\nss.)  3r)S;  Ilarrisburg  Bank  v.  Tyler,  3  Watts  &  S.  373;  Morey 
V.  Ilerrick,  18  Penn.  St.  123;  Smith  v.  Sackett,  5  Gilm.  534;  Kelly  v. 
Johnson,  28  Mo.  249;  Botsford  v.  Burr,  2  Johns.  Ch.  405;  Getman  v. 
Getman,  1  Barb.  Ch.  499;  Wright  i\  King,  Harr.  Ch.  12;  Bernard  v.  Bon- 
gard,  Harr.  Ch.  130;  Dudley  v.  Batchelder,  53  Me.  403;  Russell  v.  Allen, 
10  Paige,  249  ;  Kirkpatrick  /'.  McDonald,  1  Jones,  393  ;  Smith  v.  Burn- 
ham,  3  Sumner,  435;  White  v.  Sheldon,  4  Nev.  280;  Kendall  v. 
Mann,   11  Allen,  15. 

G  Bartlett  v.  Pickersgill,  1  Eden,  516;  Crop  y.  Norton,  9  Mod.  235; 
White  V.  Carpenter,  2  Paige,  217  ;  Henderson  v.  Hoke,  1  Dev.  &  Bat.  Ch. 
119  ;  Dudley  v.  Batchelder,  53  Maine,  403  ;  Gibson  v.  Toole,  40  3Miss.788; 
Whaloy  v.  Whaley,  71  Ala.  102  ;  Harvey  v.  Pennybacker,  4  Del.  Ch.  445; 
Boehl  V.  Wadgymar,  54  Tex.  589. 

VOL.  1.-12  177 


§  134.]  RESULTING   TEUSTS.  [CHAP.    V. 

one  should  advance  the  purchase-money  and  take  the  title  to 
himself,  l)ut  should  do  this  wholly  upon  the  account  and 
credit  of  the  other,  he  would  hold  the  estate  upon  a  resulting 
trust  for  the  other.  ^  And  if  partly  on  the  account  and 
credit  of  another,  he  would  hold  as  trustee  joro  tcmto."^ 

§  134.  A  trust  results  from  the  acts,  and  not  from  the 
agreements,  of  the  parties,  or  rather  from  the  acts  accom- 
panied by  the  agreements ;  hut  no  trust  can  be  set  up  by 
mere  parol  agreements,  or,  as  has  been  said,  no  trust  results 
merely  from  the  breach  of  a  parol  contract ;  as  if  one  agrees 
to  purchase  land  and  give  another  an  interest  in  it,  and  he 
purchases  and  pays  his  own  money,  and  takes  the  title  in 
his   own   name,    no   trust  can   result.  ^     And   so  if  a  party 

1  Aveling  v.  Knipe,  19  Ves.  441 ;  Page  v.  Page,  8  N.  H.  187  ;  Runnells  v. 
Jackson,  1  How.  (Miss.)  358;  Lounsbury  v.  Purdy,  IS  N.  Y.  515  ;  16  Barb. 
380;  Buck  v.  Pike,  2  Fairf.  9;  Moray  v.  Herrick,  18Penn.  St.  123;  Stucky 
V.  Stucky,  30  id.  546;  Kelly  v.  Johnson,  28  Mo.  219;  Cutler  v.  Tuttle,  19 
N.  J.  Eq.  562;  Dryden  v.  Ilanaway,  3  ]\Id.  254;  Fleming  v.  Mcliale,  47 
111.  282  ;  Honore  v.  Hutchins,  8  Bush,  687;  Bates  v.  Kelley,  80  Ala.  142; 
Ward  V.  Matthews,  73  Cal.  13;  Caruthers  y.  Williams,  21  Fla.  485;  Green 
V.  Dietrich,  114  111.  636;  Bradley  v.  Luce,  99  111.  234.  As  where  the 
leader  takes  the  title  merely  as  security  for  his  advance.  Wright  v. 
Gay,  101  111.  233  ;  Powell  v.  Powell,  114  111.  329.  See  also  Weekly  v. 
Ellis,  30  Kans.  507 ;  Tenny  v.  Simpson,  37  Kans.  353 ;  Wiggin  v.  Wiggin, 
58  N.  H.  235. 

2  Marvin  v.  Brooks,  94  K  Y.  71 ;  Leggett  v.  Leggett,  88  N.  C.  108; 
Brown  v.  Cave,  23  S.  C.  251;  Mims  v.  Chandler,  21  S.  C.  480;  Cook  v. 
Sherman.  4  McCrary,  20. 

8  Kisler  v.  Kisler,2  Watts,  323  ;  Williard  v.  Williard,  56  Pa.  St.  119  ; 
Loomis  V.  Loomis,  60  Barb.  22;  Stover  v.  Flack,  41  Barb.  162;  Thorner 
V.  Thorner,  18  Ind.  462;  Rogers  i>.  Simmons,  55  111.  66;  Loomis  v.  Loomis, 
28  111.  454;  Green  v.  Cook,  2  111.  196 ;  Duffy  v.  Masterson,  44  N.  Y.  557; 
Whetham  v.  Clyde,  1  Pa.  Leg.  Gaz.  R.  55.  But  see  Hidden  v.  Jordan, 
21  Cal.  92;  Green  v.  Drummond,  3  Md.  71;  Meason  v.  Kaine,  63  Peiin. 
St.  335;  Smith  r.  Hollenback,  53  111.  223;  Lantry  v.  Lantry,  51  111.  451; 
Robinson  v.  Robinson,  45  Ark.  481 ;  Hunt  v.  Freedman,  63  Cal.  510 ;  see 
§  209.  Ward  v.  Spivey,  18  Fla.  847 ;  Follett  v.  Badeau,  26  Hun,  253 ; 
Lawrence  v.  Lawrence,  14  Oregon,  77.  A  trust  resulting  from  the  acts 
of  the  parties  will  not  be  converted  into  an  express  trust  by  the  agree- 
ment of  the  parties ;  that  is,  it  will  not  be  any  the  less  a  resulting  trust, 
and  it  will  not  be  within  the  statute  of  frauds.  Cotton  v.  Wood,  25 
Iowa,  43. 

178 


CHAP,   v.]  PAROL   PROOF.  [§  135. 

makes  no  payment,  and  none  is  made  on  his  account,  either 
actually  or  constructively,  he  cannot  claim  a  resulting 
trust.'  As  where  a  father  made  a  deed  to  a  son-in-law,  in 
consideration  of  love  and  affection  for  his  daughter,  no  trust 
resulted. 2  And  so  a  mere  parol  declaration  by  one  that  he 
is  buying  land  for  another  is  not  sufficient  to  establish  a 
resulting  trust;  there  must  be  some  proof  of  an  actual  or 
constructive  payment  by  the  person  claiming  such  a  trust.  ^ 
The  rule  is  otherwise  if  the  promise  led  the  plaintiff  to  take 
action  he  would  not  otherwise  have  taken.  Then  the  breach 
of  the  promise  becomes  a  fraud,  and  a  trust  may  exist.* 

§  135.  Again,  parol  proof  cannot  be  received  to  establish 
a  resulting  trust  in  lands  purchased  by  an  agent  and  paid  for 
by  his  own  funds,  no  money  of  the  principal  being  used  for 
the  payment;  for  the  relation  of  principal  and  agent  depends 
upon  the  agreement  existing  between  them,  and  the  trust  in 
such  a  case  must  arise  from  the  agreement,  and  not  from  the 
transaction,  and  where  a  trust  arises  from  an  agreement,  it 
is    within  the  statute  of  frauds,   and    must   he  in  writing.^ 

^  Jackson  v.  Ringland,  4  Watts  &  S.  149 ;  Botsford  v.  Burr,  2  Johns. 
Ch.  408;  Lathrop  v.  Hoyt,  7  Barb.  60;  Dorsey  i-.  Clark,  4  liar.  &  J.  551; 
Smith  V.  Smith,  3  Casey,  ISO;  Fischili  v.  Dumaresly,  3  Marsh.  23;  Sharp 
V.  Long,  4  Casey,  434  ;  Thompson  v.  Branch,  INIeigs,  390  ;  Walker  v.  Brun- 
gard,  13  S.  &  M.  723;  Ensley  i'.  Ballentiue,  4  Humph.  233;  Lynn  v.  Lynn, 
5  Gil.  602 ;  Sample  v.  Coulson,  9  Watts  &  S.  62 ;  Peebles  v.  Reading, 
8  Ser.  &  R.  484. 

2  Thompson  v.  Thompson,  18  Ohio  St.  73. 

8  Ibid. ;  Kisler  v.  Kisler,  2  Watts,  323  ;  Williard  v.  Williard,  56  Penn. 
St.  119. 

*  See  §  171  et  seq. 

5  Kennedy  v.  Keating,  34  Mo.  25 ;  Woodhull  v.  Osborne,  2  Edw.  Ch. 
615;  Lathrop  v.  Hoyt,  7  Barb.  60;  2  Story,  Eq.  Jur.  §  1201  a;  Bartlett  v. 
PickersgiU,  1  Eden,  515;  4  Burr.  22;  1  Cox,  15;  4  East,  577;  Rastel  v. 
Hutchinson,  1  Dick.  44;  Lamas  v.  Bayly,  2  Vern.  627;  Atkins  v.  Rowe, 
Mose.  39;  O'llara  v.  O'Neil,  2  Bro.  P.  C.  39;  Jackman  v.  Ringland, 
4  Watts  &  S.  149;  Peebles  v.  Reading,  8  Ser.  &  R.  492;  Pinnock  v. 
Clougli,  16  \t.  507;  Flagg  v.  Mann,  2  Sum.  546;  Walker  r.  Brungard, 
13  Sm.  &  M.  7G5;  Taliaferro  v.  Taliaferro,  6  Ala.  406;  Moore  v.  Green, 

3  r>.  ]\Ion.  407;  Fowke  v.  Slaughter,  3  A.  K.  Marsh.  57;  Dorsey  r.  Clarke, 

4  liar.  &  J.  551;  Pearson  v.  East,  36  Ind.  28;  Minot  v.  Mitchell,  30  lud. 

179 


§  136.]  RESULTING    TRUSTS.  [CIIAP.    V. 

This  rule  is  so  inflexible,  that  though  the  agent  may  be 
indicted,  and  convicted  of  perjury  in  denying  his  character 
as  agent  in  his  answer  under  oath,  the  court  cannot  decree 
and  establish  the  trust.  ^  But  if  an  agent  invest  his  princi- 
pal's money  in  real  estate  without  his  knowledge,  or  if, 
investing  the  money  with  his  knowledge,  he  take  the  deed 
in  his  own  name  without  his  consent,  or  take  a  deed  in  a 
form  contrary  to  the  understanding,  there  will  be  a  resulting 
trust. ^  (a)  But  if  one  standing  in  no  fiduciary  relation 
obtains  another's  property  wrongfully,  and  invests  it  in 
land  in  his  own  name,  or  if  a  clerk  appropriates  his  master's 
money  and  buys  real  estate  in  his  own  name,  there  is  no 
resulting  trust.  ^ 

§  136.  In  England,  if  two  persons  join  in  a  purchase  and 
contribute  equally,  and  take  the  title  in  their  own  names, 
there  is  no  reason  to  presume  a  resulting  trust,  and  the  two 
are  joint  tenants,  the  survivor  taking  the  whole  jure 
accreseendi.'^     And  so  if  two  contract  for  a  purchase  to  them 

228  ;  Arnold  v.  Cord,  16  Ind.  177;  Graves  v.  Ward,  2  Duv.  301 ;  Heacock 
V.  Coatesworth,  Clarke,  84;  Burden  v.  Sheridan,  36  Iowa,  12.5;  Nestal  v. 
Schmid,  29  N.  J.  Eq.  460.  But  -where  an  attorney  purchased  property 
sold  upon  an  execution  in  favor  of  his  client  at  a  grossly  inadequate 
price,  it  was  held  that  he  was  a  trustee  for  his  principal.  Howell  v. 
Baker,  4  Johns.  Ch.  118.  See  Wade  v.  Pettibone,  11  Ohio,  57  ;  14  Ohio, 
557. 

^  Bartlett  v.  Pickersgill,  1  Eden,  515  ;  King  v.  Boston,  4  East,  572. 

2  Day  V.  Roth,  18  N.  Y.  448;  Bridenbecker  v.  Lowell,  32  Barb.  9; 
Pugh  r.  Pugh,  9  Ind.  132;  Rothwell  v.  Dewees,  2  Black,  613;  Bruce  v. 
Ronly,  18  111.  67 ;  Follansbe  v.  Kilbreth,  17  111.  522  ;  Squire's  App.,  70 
Penu.  St.  268  ;  Seichrist's  App.,  66  id.  237.  So  if  he  take  the  deed  in  his 
wife's  name,  a  knowledge  by  the  principal  that  the  deed  is  so  made  will 
not  affect  the  trust.    Bostleman  v.  Bostleman  and  Wife,  24  N.  J.  Eq.  103. 

2  Ensley  v.  Ballentine,  4  Humph.  233  ;  Campbell  v.  Drake,  4  Ired.  Eq. 
94.  But  where  A.  embezzled  B.'s  money  and  invested  it  in  stock  in  the 
name  of  C,  a  mere  volunteer,  a  resulting  trust  was  enforced  against  C.  in 
favor  of  B.  Bank  of  America  v.  Pollock,  4  Edw.  Ch.  415;  and  see  Pas- 
ooag  Bank  v.  Hunt,  3  Edw.  215  ;  ante,  §  128.  See  also  Newton  v.  Porter, 
5  Lans.  417. 

*  Robinson  v.  Preston,  4  K.  &  J.  505 ;  Bone  v.  Pollard,  24  Beav.  288 ; 

(a)  See  infra,  §  206,  note  (a). 
180 


CHAP,    v.]  I'AKOL   PliOOF.  [§  137. 

and  their  heirs,  paying  equal  proportions,  and  one  dies,  the 
court  will  order  a  specific  performance  by  a  conveyance  to 
the  survivor  alone.  ^  But  the  court  lays  hold  of  every  cir- 
cumstance to  defeat  the  joint  tenancy  and  convert  it  into  a 
tenancy  in  common. ^  Thus,  where  two  tenants  in  common 
of  a  joint  mortgage  term  purchase  the  equity  of  redemption, ^ 
or  several  engage  in  a  joint  undertaking,  or  partnership,  or 
trade,  or  speculation,*  or  several  purchase  an  estate  and  pay 
cfpially,  but  one  improves  the  estate  at  his  own  cost,^  equity 
will  construe  them  to  be  tenants  in  common  and  not  joint 
tenants.  In  this  country,  title  by  joint  tenancy  is  very 
much  reduced  in  extent,  and  the  incident  of  survivorship  is 
almost  entirely  destroyed  by  statutes,  except  in  the  case  of 
trustees,  executors,  and  others,  in  whom  such  a  tenancy  is 
necessary  for  the  execution  of  their  trusts.^ 

§  137.  The  transaction  out  of  which  a  trust  results  may  be 
proved  by  parol. '^     The  statute    of   frauds   extends  to   and 

Moyse  v.  Gyles,  2  Yern.  385;  Hayes  v.  Kingdome,  1  Vern.  33;  York  v. 
Eaton,  2  Freem.  23;  Aveling  v.  Knipe,  19  Yes.  441  ;  Rigden  v.  Yallier, 
3  Atk.  735;  Lake  v.  Gibson,  1  Eq.  Cas,  Ab.  291;  Anon.,  Garth.  15;  Rea 
V.  Williams,  Sugd.  Y.  &  P.  (14th  ed.)  p.  [697];  Thicknesse  v.  Yernon, 
2  Freera.  84, 

^  Aveling  v.  Knipe,  19  Yes.  441. 

2  Robinson  v.  Preston,  4  K.  &  J.  505;  Tompkins  v.  Mitchell,  2  Rand. 
428 ;  Brothers  v.  Porter,  6  B.  I\Ion.  100 ;  Barribeau  v.  Brant,  17  How.  43. 

8  Edwards  v.  Fashion,  Pr.  Ch.  332;  Morly  v.  Bird,  3  Yes.  631;  Rigden 
V.  Yallier,  3  Atk.  734 ;  Yickers  c.  Cowell,  1  Beav.  629 ;  Partridge  v.  Paw- 
lett,  1  Atk.  467;  Anon.,  Carth.  16;  Petty  r.  Styward,  1  Ch.  R.  57;  Ran- 
dall r.  Phillips,  3  Mason,  378. 

4  Lake  v.  Gibson,  1  Eq.  Cas.  Ab.  290 ;  3  P.  Wms.  158 ;  York  v.  Eaton, 
2  Freem.  23  ;  Jackson  v.  Jackson,  9  Yes.  597,  n. ;  Lyster  v.  Dolland,  1  Yes. 
Jr.  434;  Jeffreys  v.  Small,  1  Yern.  217;  Caines  v.  Grant,  5  Binn.  119; 
Duncan  v.  Forrer,  6  Binn.  193;  Sigourney  v.  Munn,  7  Conn.  11  ;  Overton 
V.  Lacy,  6  Monroe,  13;  Deloney  v.  Hutcheson,  2  Rand.  1S3 ;  Cuyler  t*. 
Bradt,  2  Caines'  Cas.  326 ;  Pugh  v.  Currie,  5  Ala.  440 ;  ]\IcAllister  v.  :\Iont- 
gomen,',  3  Hayw.  94;  Farley  v.  Shippen,  "Wythe,  135.  See  Appleton  v. 
Boyd,  7  Mass.  131;  Kmsley  r.  Abbott,  19  Maine,  430. 

8  Lake  v.  Gibson,  1  Eq.  Cas.  291. 

e  See  4  Kent  Com.  390  (11th  ed.). 

'  Livermore  v.  Aldrich,  5  Cush.  435;  Boyd  v.  ^McLean,  1  Johns.  Ch. 

181 


§  137.]  RESULTING  TRUSTS.  [CHAP.   V. 

embraces  only  trusts  created  or  declared  by  the  parties,  and 
does  not  affect  trusts  arising  Ijy  operation  of  law.  ^  (a)  In- 
deed, such  trusts  are  specially  excepted  in  the  statute  of 
frauds  of  most  States.  The  exception,  however,  was  omitted 
in  the  statute  of  Rhode  Island ;  but  Mr.  Justice  Story  held 
that  the  omission  was  immaterial,  as  such  trusts  were 
excepted  in  the  nature  of  things.  ^  It  follows  that  a  party 
setting  up  a  resulting  trust  may  prove  by  parol  the  agree- 
ments under  which  the  estate  was  purchased,  and  he  may 
prove  by  parol  the  actual  payment  of  the  purchase-money  by 
himself,  or  in  his  behalf,  although  the  deed  states  it  to  have 
been    paid    by   the    grantee   in   the   conveyance.^  (b)     And 

582 ;  Yerplank  v.  Caines,  id.  57 ;  Botsford  v.  Burr,  2  id.  405 ;  Ch.  57 ; 
Page  V.  Page,  8  N.  H.  187;  Scoby  v.  Blanchard,  3  N.  H.  170 ;  Pritchard 
V.  Brown,  4  IST.  H.  397;  Gardner  Bank  v.  Wheaton,  8  Greenl.  373;  Powell 
r.  Mouson  &  Brim.  Manuf.  Co.,  3  Mason,  347;  Elliott  v.  Armstrong, 
8  Blackf.  199;  Jennison  v.  Graves,  id.  441 ;  Blair  v.  Bass,  4  id.  550  ;  Snel- 
ling  V.  Utterback,  1  Bibb,  609  ;  Foote  v.  Bryant,  47  N.  Y.  544  ;  McGinity 
V.  McGinity,  6  Penn.  St.  38;  Peiffer  r.  Lytle,  58  id.  386;  Nixon's  App., 
63  id.  277;  Byers  v.  AVackman,  16  Ohio,  80,  440;  Paris  v.  Dunn,  7  Bush, 
276;  Caldwell  v.  Caldwell,  7  Bush,  515;  Morgan  v.  Clayton,  61  111.  35; 
Knox  V.  IMcFarran,  4  Col.  58'3 ;  Learned  v.  Tritch,  6  Col.  432.  Otherwise 
ill  Michigan.  Groesbeck  v.  Seeley,  13  Mich.  329  ;  and  see  Barbin  v.  Gas- 
ford,  15  La.  An.  539. 

1  Ibid. ;  Ross  v.  Hegeman,  2  Edw.  Ch.  373 ;  Larkin  v.  Rhodes,  5  Por- 
ter, 196;  Enos  v.  Hunter,  4  Gil.  211  ;  Smith  v.  Sackett,  5  Gilm.  544; 
Foote  V.  Bryant,  47  N.  Y.  544 ;  Black  v.  Black,  4  Pick.  238 ;  Bryant  r. 
Hendricks,  5  Iowa,  256 ;  Judd  r.  Haseley,  22  Iowa,  428 ;  Ward  v.  Arm- 
strong, 84  111.  151 ;  Gale  v.  Harby,  20  Fla.  171. 

2  Hoxie  V.  Carr,  1  Sum.  187. 

8  De  Peyster  v.  Gould,  2  Green,  Ch.  474 ;  Dismukes  v.  Terry,  Walk. 
197;  Peabody  v.  Tarbell,  2  Cush.  232;  Barron  v.  Barron,  24  Vt.  375; 
Smith  V.  Burnham,  3  Sum.  438  ;  Malin  v.  Malin,  1  Wend.  626  ;  Harder  r. 
Harder,  2  Sandf.  Ch.  17;  Peirce  v.  McKeehan,  3  Barr,  136;  Lloyd  v.  Car- 
ter, 17  Pa.  St.  216 ;  Peebles  v.  Reading,  8  Serg.  &  R.  484  ;  Millard  v. 
Hathaway,  27  Cal.  119;  Lyford  ;;.  Thurston,  16  N.  H.  399  ;  Bayles  v.  Bax- 
ter, 22  Cal.  575;  Cooper  v.  Skeele,  14  Iowa,  578.  In  Kirk  v.  Webb,  Pr. 
Ch.  84,  the  court  refused  to  admit  parol  evidence  to  control  the  recitals  of 

(a)  This  applies  to  that  clause    be  performed  within  a  year.     Rayl 
of  the  statute  which  prohibits  suits    i-.  Rayl,  58  Kansas,  585. 
upon  unwritten  agreements  not  to  (b)  Boyd  v.  Boyd,  163  111.  611; 

Bancroft  v.  Russell,  157  Mass.  47. 
182 


CHAP,    v.]  PAROL   PROOF.  [§  1.37. 

although  the  holder  of  the  legal  title  has  fraudulently  or  by 
mistake  made  a  declaration  that  he  holds  the  jtroperty  for 
some  other  person,'  or  states  it  to  be  for  the  use  of  the 
grantor, 2  and  although  the  trust,  and  all  the  circumstances 
out  of  which  it  arises,  may  be  denied  under  oath  in  the 
answer,  yet  the  facts  may  all  be  proved  by  parol  in  opposi- 
tion to  the  answer.^  In  such  case  the  trust  must  be  clearly 
alleged  in  the  bill,  not  only  in  terms,  Init  all  the  facts  must 
be  set  out  from  which  the  trust  is  claimed  to  result.*  Gen- 
eral vague  statements  of  a  testator  that  the  land  he  owned 
was  the  "  security  or  property  held  in  trust  by  him  for  the 
payment  of  the  trust  fund,"  will  not  be  sufficient  to  impress 
a  trust  on  the  property  in  the  absence  of  clear  evidence  that 
trust  funds  were  used   in  the  purchase  of  the  land.^     The 

the  deed  as  to  the  payment  of  the  consideration,  and  this  decision  was 
followed  in  Heron  v.  Heron,  Pr.  Ch.  163  ;  Freera.  248;  Skitt  v.  Wliitmore, 
Freein.  280;  Kinder  v.  Miller,  Pr.  Ch.  172 ;  Xewton  v.  Preston,  id.  103; 
Hooper  V.  Eyles,  2  Vern.  480;  Cox  v.  Bateman,  2  Ves.  19;  Ambrose  v. 
Ambrose,  1  P.  Wms.  321 ;  Deg  v.  Deg,  2  id.  414;  but  the  rule  has  been 
changed,  and  the  doctrine  stated  in  the  text  is  now  established  beyond 
controversy.  Bartlett  v.  Pickersgill,  1  Eden,  515;  Lench  v.  Lench,  10 
Ves.  517;  Groves  v.  Groves,  3  Y.  &  J.  163.  See  2  Story,  Eq.  Jur.  §  1201, 
and  notes;  Livermore  v.  Aldrich,  5  Cush.  435;  Connor  v.  Follansbee,  59 
N.  H.  125. 

^  Hanson  v.  First  Presbyterian  Church,  1  Stock.  441. 

2  Cotton  V.  Wood,  25  Iowa,  43. 

«  Cooth  V.  Jackson,  6  Ves.  39;  Buck  v.  Pike,  2  Fairf.  24;  Baker  v. 
Vining.  30  Me.  121;  Page  r.  Page,  8  N.  H.  187;  :\Ioore  v.  ^loore,  38 
N.  H.  3S2;  Boyd  v.  I\IcLean,  1  Johns.  Ch.  582;  Botsford  v.  Burr,  2 
id.  405;  Swinburne  v.  Swinburne,  28  N.  Y.  568;  Snelling  v.  Utterback, 
1  Bibb,  609;  Lloyd  v.  Lynch,  28  Pa.  St.  419;  Letcher  v.  Letcher, 
4  J.  J.  Marsh.  590;  Miller  v.  Stokely,  5  Ohio  St.  194;  Elliott  v.  Arm- 
strong, 2  Blackf.  198;  Jenison  v.  Graves,  id.  440;  Blair  v.  Bass,  4  id. 
540;  Larkiiis  v.  Rhodes,  5  Porter,  196;  Farringer  v.  Ramsey,  2  Md.  305  ; 
Greor  r.  Baugliman,  13  Md.  2.37;  Ensley  c  Ballentine,  4  Humph.  233; 
Paine  c.  Wilcox,  16  Wis.  202;  Olive  r.  Dougherty,  3  Iowa,  371;  Van- 
dever  r.  Freeman,  2C  Tex.  333  ;  Pugh  r.  Bell,  1  J.  J.  Marsh.  399. 

*  Rowell  V.  Freese,  23  Maine,  182  ;  Hickey  i'.  Young,  1  J.  J.  Marsh.  1  • 
Gascoigne  v.  Thvving,  1  Vern.  306  ;  Rider  c.  Kidder,  10  Ves.  364 ;  Groves 
t'.  (Jroves,  3  Y.  &  J.  163;  Ilalcott  r.  Morkant,  Pr.  Ch.  108;  Goodright  v. 
Hodges,  1  Watk.  Corp.  229  ;  Willis  v.  Willis,  2  Atk.  71. 

6  Cuming  v.  Robins,  39  N.  J.  Eq.  40. 

183 


§  137.]  RESULTING   TRUSTS.  [CHAP.   V. 

facts  in  all  cases  must  be  proved  with  great  clearness  and 
certainty/  especially  when  the  claim  depends  upon  mere 
statements ;  ^  and  facts  that  only  base  a  conjecture  that  the 
conditions  of  a  resulting  trust  existed,  are  insufficient. ^(a) 

*  Cuming  v.  Robins,  39  N.  J.  Eq.  46 ;  Slocumb  v.  Marshall,  2  Wash. 
C.  C.  397 ;  Newton  v.  Preston,  Pr.  Ch.  103  ;  Wright  v.  King,  Harr.  Ch. 
12;  Enos  v.  Hunter, 4  Gilm.  211;  Carey  v.  Callau,  6  B.  Mon.  44;  O'Hara 
r.  O'Xeil,  2  Eq.  Cas.  Ab.  475;  Cottingtou  v.  Fletcher,  2  Atk.  155;  Am- 
brose V.  Ambrose,  1  P.  Wms.  321;  Ilyden  v.  Ilydeu,  6  Baxter  (Tenn.), 
406;  Thomas  v.  Sandford,  49  Md.  181;  Johnson  v.  Richardson,  44  Ark. 
365;  Harvey  v.  Pennybacker,  4  Del.  Ch.  445;  Green  v.  Dietrich,  114  111. 
636;  Witts  v.  Homey,  59  Md.  584;  Philpot  v.  Penn.,  91  Mo.  38;  Rogers 
V.  Rogers,  87  Mo.  257 ;  Shaw  v.  Shaw,  8G  Mo.  594  ;  Modrell  v.  Riddle,  82 
Mo.  31  ;  Parker  v.  Snyder,  31  N.  J.  Eq.  164  ;  Brickell  v.  Earley,  115 
Penn.  St.  473.  As  to  what  facts  are  competent  and  necessary  to  be 
proved,  see  Hunter  v.  Marlboro',  2  Wood.  &  M.  168 ;  Morey  v.  Herrick, 
18  Penn.  St.  128 ;  Blyholder  v.  Gibson,  18  Pa.  St.  134 ;  Farringer  v. 
Ramsey,  4  Md.  Ch.  33;  Malin  v.  Malin,  1  Wend.  626;  Harder  v.  Harder, 
1  Sandf.  17;  Snelling  v.  Utterback,  1  Bibb,  609;  Freeman  i\  Kelly,  1 
Hoff.  90;  Baker  v.  Vining,  30  Me.  128;  Clarke  y.  Quackenboss,  27  111. 
260  ;  Nelson  v.  Warrall,  20  Iowa,  409  ;  White  v.  Weldon,  4  Nev.  280 ; 
Stall  V.  Cincinnati,  16  Ohio  St.  169;  Browne  v.  Stamp,  21  Md.  328; 
Holder  v.  Nunnelly,  2  Cold.  288 ;  Childs  v.  Gramold,  19  Iowa,  362  ; 
Cutler  V.  Tuttle,  19  N.  J.  Eq.  560;  Parmlee  v.  Sloan,  37  Ind.  469;  Phelps 
V.  Seeley,  22  Grat.  573;  Shepard  v.   Pratt,  32  Iowa,  296. 

2  Heneke  v.  Floring,  114  111.  554 ;  McKeown  i\  McKeown,  33  N.  J. 
Eq.  384. 

8  Railsback  v.  Williamson,  88  III.  497. 

(rt)  The  evidence  to  establish  a  Jackson,    135    Ind.   136;    Pillars   v. 

resulting  trust   in   such    cases,   es-  McConnell,  141  Ind.  670;  Logan  v. 

pecially   when   the  trust   arises   ex  Johnson,  72   Miss.   185  ;  Gaines  v. 

?«a/e^c/o,  must  be  clear,  unequivocal,  Drakeford,  51  S.   C.  37;  Rogers  u. 

and  convincing;  the  burden  of  proof  Rogers,    87    Mo.     2.57;     Reed     v. 

is  upon  the  person  seeking  to  estab-  Painter,    129    Mo.    674  ;    Roche   v. 

lish  the  trust ;  and  the  presumption  George,    93    Ky.     609;    Parker    v. 

is  strong  in  favor  of  the  legal  title  Logan,  82  Va.  376 ;  Snider  v.  John- 

and  possession.     Ilowland  v.  Blake,  son,  25  Oregon,  328;    Sherman   v. 

97  U.   S.  624 ;    Brickell   v.  Earley,  San  dell,  106  Cal.  373  ;  Woodside  v. 

115  Penn.  St.  473 ;  Martin  i-.  Baird,  Hewel,    109    Cal.    481;    Mullen    v. 

175  id.  540;  Francis  v.  Roades,  146  :McKim,  22  Col.  468;  Marshall  v. 

111.  635;   McGinnis  r.  Jacobs,  147  Fleming  (Col.),  53  Pac.  620;  Speu- 

111.  24 ;  Jacksonville  Nat.   Bank  v.  car  v.  Terrel,  17  Wash.  514 ;  Cham- 

Beesley,   1.59    111.     120;    Myers    v.  bers  u.  Emery,  13  Utah,  374.     This 
184 


CHAP,   v.]  PAROL   PROOF.  [§  138. 

The  certainty  required,  however,  is  only  such  as  is  sufficient 
to  satisfy  the  jury  of  the  existence  of  the  trust;  and  it  is 
error  to  charge  that  the  "clearest  and  most  positive  proof" 
must  be  given.  ^  For  this  purpose  all  competent  evidence  is 
admissible,  as  the  admissions  of  the  nominal  purchaser  and 
grantee  in  the  deed,  recitals  in  the  deed  and  other  proper 
documents,  and  even  circumstantial  evidence,  as  that  the 
means  of  the  nominal  purchaser  were  so  limited  that  it  was 
impossil)le  for  him  to  pay  the  purchase-money.^  (a)  But 
loose  and  equivocal  facts  ought  not  to  control  the  evidence 
of  deeds;  and  two  witnesses,  or  one  witness  with  corroborat- 
ing circumstances,  are  required  to  control  an  answer  under 
oath.  And  proof  of  mere  admissions  of  one  that  he  pur- 
chased for  another,  without  proof  of  some  previous  arrange- 
ment or  advance  of  money  by  such  other,  is  insufficient  to 
create  a  resulting  trust.^  (b) 

§  138.  It  has  been  stated  by  some  writers  that  after  the 
death  of  the  sujyj^osed  nominal  purchaser,  parol  proof  alone 

1  Neyland  i:  Bendy,  69  Tex.  711. 

2  Wniis  r.  Willis,  2  Atk.  71 ;  Wilkins  v.  Stevens,  1  Y.  &  C  Ch.  431 ; 
Lench  v.  Lench,  10  Ves.  518;  Benger  v.  Drew,  1  P.  Wms.  780;  Strinipfler 
V.  Roberts,  18Penn.  St.  283  ;  Farrell  v.  Lloyd,  69  id.  239;  Baumgartner  v. 
Guessfeld,  38  Mo.  36 ;  Brown  v.  Tetney,  3  111.  468 ;  Sayre  r.  Frederick, 
16  N.  J.  Eq.  205  ;  Gascoigne  r.  Thwing,  30  N.  J.  L.  306 ;  Graves  v. 
Graves,  3  Y.  &  J.  170 ;  INIitchell  r.  O'Neil,  4  Nev.  504. 

8  Sidle  V.  Walter,  5  Watts,  389;  and  see  Sample  v.  Coulson,  9  W.  & 
S.  62.  The  admission  of  a  trustee  that  he  purchased  certain  property 
with  the  trust  fund  is  competent  evidence  to  raise  a  resulting  trust  for 
the  cestui  que  irunt  in  that  property.  Harrisburg  Bank  v.  Tyler,  3  Watts 
&  S.  373. 

is  analogous  to  the  general  rule  in  lished  even  after  the  lajise  of  many 

equity  that  an  instrument  will  not  years,  and  by  oral  evidence,  though 

be  reformed  on  the  ground  of  mis-  denied   by  an  answer  in  chancery. 

take,  except  upon   full,  clear,   and  Cooksey  i*.  Bryan,   2   App.   D.  C. 

decisive  proof  of  the  mistake.    Loud  557;  Condit  v.  Maxwell,  142  Mo. 

V.  Barnes,  154  Mass.  344  ;  Richard-  206. 

son     V.    Adams,     171     Mass.     447.  (o)  Salisbury  c.  Clarke,  61  Vt.  453. 

When  the  evidence  showing  a  result-  (h)   Springer   v.  Kroeschell,    101 

ing  trust  is  clear,  it  may  be  estab-  111.  358. 

185 


§  139.]  RESULTING   TRUSTS,  [CHAP.   V. 

could  not  be  admitted  to  control  the  express  declaration  of 
the  deed ;  ^  but  the  cases  relied  upon  are  tlie  cases  before 
cited  to  the  point  that  parol  proof  is  inadmissible,  both 
before  and  after  the  death  of  the  supposed  nominal  purchaser. 
These  cases  are  overruled ;  and  it  would  seem  upon  principle 
that  the  death  of  the  nominal  purchaser  cannot  affect  the 
admissibility  of  parol  testimony,  whatever  effect  it  may  have 
upon  its  weight,^  Analogous  to  this  matter  is  the  question 
whether  trust-money  can  be  followed  into  land  by  parol 
evidence ;  and  it  is  clearly  established  that  it  may,  on  the 
ground  that  a  purchase  with  trust-money  is  virtually  a  pur- 
chase paid  for  by  the  cestui  que  trust,  and  such  a  purchase 
is  a  trust  by  operation  of  law,  and  not  within  the  statute 
of  frauds.^  And  if  a  trustee  pay  for  property  out  of  the 
trust  fund,  and  take  the  deed  in  the  name  of  another, 
the  trust  results  to  the  cestui  que  trust,  and  not  to  the 
trustee.^ 

§  139.  It  follows  that  as  a  resulting  trust  may  be  shown 
by  parol  proof,  as  a  presumption  of  law  arising  out  of  the 
transaction,  so  the  presumption  may  be  rebutted  by  parol 
proof  showing  that  no  trust  was  intended  by  the  parties  at 
the  time  of  the  transaction,^  and  that  it  was  the  intention  to 
confer  the  beneficial  interest  upon  the  supposed  nominal  pur- 
chaser.    As  the  resulting  trust  is  mere  matter  of  equitable 

^  Sanders  on  Uses  and  Trusts,  259;  note  to  Lloyd  v.  Spillett,  2  Atk. 
150 ;  Roberts  on  Statute  of  Frauds,  99. 

2  Lewin  on  Trusts,  138  (5th  Lend,  ed.),  2  Mad.  Ch.  Pr.  141 ;  Sugd.  V. 
&  P.  136  (9th  ed.)  ;  Lench  v.  Lench,  10  Ves.  517;  2  Story,  Eq.  Jur. 
§  1201,  n. ;  Liverraore  v.  Aldrich,  5  Cush.  435;  Unitarian  So.  v.  Wood- 
bury, 14  Me.  281;  De  Peyster  v.  Gould,  2  Green,  Ch.  474;  Harrisburg 
Bank  v.  Tyler,  3  W.  &  S.  373;  Harder  v.  Harder,  2  Saud.  Ch.  17; 
McCammon  v.  Petitt,  3  Sneed,  242  ;  Fausler  v.  Jones,  7  Ind.  277 ;  Neill 
V.  Keese,  5  Tex.  23  ;  Freeman  v.  Kelly,  1  Hoff.  90 ;  Richardson  v.  Taylor, 
45  Ark.  472. 

8  Lench  v.  Lench,  10  Ves.  517 ;  Trench  v.  Harrison,  17  Sim.  Ill ;  ante, 
§§  127,  128. 

*  Russell  V.  Allen,  10  Paige,  249  ;  Wynn  v.  Sharer,  23  Tnd.  573. 

^  Warren  v.  Steer,  112  Penn.  St.  635 ;  declarations  made  afterwards  and 
not  bearing  on  the  intent  at  the  time  of  purchase  cannot  affect  the  title. 

186 


CHAP,   v.]  PAROL   PROOF.  [§  140. 

presumption,  it  may  be  rebutted  by  facts  that  negative  the 
presumj)tion  ;  and  whatever  facts  appear  tending  to  prove  that 
it  was  intended  that  the  nominal  purchaser  should  take  the 
beneficial  interest  as  well  as  the  legal  title,  negatives  the  pre- 
sumption.^ The  presumption  may  be  negatived  as  to  part  of 
the  estate,  and  prevail  in  part.'^  The  presum])tion,  however, 
is  in  favor  of  the  trust  resulting  to  the  party  paying  the  con- 
sideration, and  the  burden  of  proof  is  upon  the  mere  nominal 
purchaser  to  show  that  he  was  intended  to  have  some  bene- 
ficial interest.^  The  burden  of  proof  on  the  whole  case,  how- 
ever, rests  on  the  one  who  seeks  to  establish  a  resulting  trust, 
to  show  by  clear  evidence  the  necessary  facts.* 

§  140.  And  when  a  clear  understanding  is  had  at  the  time 
the  purchase  is  made,  the  money  paid,  and  the  deed  taken, 
by  which  understanding  the  nominal  purchaser  was  to  have 
both  the  legal  and  the  beneficial  interest,  it  is  incompetent  for 
the  person  who  paid  the  purchase-money  to  put  a  different 
construction  upon  the  transaction  at  a  subsequent  time,  and 
claim  a  resulting  trust  in  the  estate  contrary  to  the  uudcr- 

1  Rider  1'.  Kidder,  10  Ves.  361;  Benbow  v.  Townsend,  1  :\I.  &  K.  508; 
Goodrijzht  v.  Hodges,  1  Watk.  Cop.  227  ;  Lofft.  230;  Ruudle  v.  Rundle,  2 
Vern.  252;  Taylor  v.  Taylor,  1  Atk.  386;  Rediugton  v.  Redington,  3 
Ridg.  106 ;  Beecher  v.  Major,  2  Drew.  &  Sm.  431 ;  Garrick  v.  Taylor,  29 
Beav.  79;  4  De  G.,  F.  &  J.  159;  Bellasis  v.  Compton,  2  Vern.  294  ;  Mad- 
dison  V.  Andrew,  1  Ves.  58  ;  Bake  v.  Vining,  30  ]\Iaine,  120  ;  Page  v.  Page, 
8  N.  H.  189  ;  Botsford  v.  Burr,  2  Johns.  Ch.  405 ;  Steers  v.  Steere,  5  id. 
18;  White  «;.  Carpenter,  2  Paige,  217;  Jackson  v.  Feller,  2  Wend.  465; 
Creed  v.  Lancaster  Bank,  1  Ohio  St.  1;  Sewell  v.  Baxter,  2  Md.  Ch.  448; 
Hays  V.  Hollis,  8  Gill,  369  ;  McGuire  v.  ISIcGowen,  4  Des.  487  ;  Elliott  v. 
Armstrong,  2  Blackf.  199  ;  Philips  v.  Crammond,  2  Wash.  C.  C.  441 ; 
Myers  v.  Myers,  1  Casey,  100;  Squire  v.  Harder,  1  Paige,  494;  Ledge 
V.  Morse,  16  Johns.  199  ;  Smith  v.  Howell,  3  Stockt.  122  ;  Bayles  v.  Bax- 
ter, 22  Cal.  375 ;  McCue  v.  Gallagher,  23  Cal.  51 ;  Byers  v.  Danley,  27 
Ark.  77;  Hays  v.  Quay,  68  Penn.  St.  263;  Murphy  v.  Peabody,  63  Ga. 
522  ;  Kelsey  v.  Snyder,  118  111.  544. 

2  Benbow  v.  Townsend,  1  M.  &  K.  506 ;  Rider  v.  Kidder,  10  Ves.  360  ; 
Lane  v.  Dighton,  Amb.  409;  Pinney  v.  Fellows,  15  Vt.  525. 

3  Dudley  V.  Bosworth,  10  Humph.  12;  2  Sugd.  V.  &  P.  139  (9th  ed.). 
*  Philpot  V.  Penn,  91  Mo.  44;  Jackson  v.  Wood,  88  Mo.  76;  Johnson 

V.  Quarles,  46  :\Io.  423. 

187 


§  141.]  RESULTING   TEUSTS.  [CIIAP.    V. 

standing  and  intention  at  the  time.^  And  if  the  nominal  pur- 
chaser, under  such  circumstances,  should  afterwards  agree  to 
hold  in  trust  for,  or  to  execute  a  conveyance  to  the  person  who 
paid  the  money,  courts  would  not  enforce  the  agreement,  if  it 
was  without  a  new  consideration  or  voluntary.^  So  if  the 
trust  is  declared  in  writing  at  the  time  of  the  transaction 
there  can  be  no  resulting  trust,  as  the  one  precludes  the 
other; 3  or  if  the  nominal  purchaser  stipulates  for  something 
out  of  the  transaction  inconsistent  with  the  trust.* 

§  141.  Courts  will  not  enforce  a  resulting  trust  after  a 
great  lapse  of  time,^  or  laclies  on  the  part  of  the  supposed 
cestui  que  trust,  especially  when  it  appears  that  the  supposed 
nominal  purchaser  has  occupied  and  enjoyed  the  estate.^  But 
if  the  trust  is  admitted,  and  there  has  been  no  adverse  holding, 
lapse  of  time  is  no  bai-,'^  and  laches  will  not  be  allowed  to 
avail  as  a  defence,  where  fraud  has  been  practised  on  the 
cestui  to  keep  her  in  ignorance  of  her  rights  until  just  before 
filing  the  bill.     Any  excuse  for  delay  that  takes  hold  of  the 

1  Groves  v.  Groves,  3  Y.  &  J.  172  ;  Hunt  v.  Moore,  6  Cush.  1  ;  White 
r.  Sheldon,  4  Nev.  280  ;  Robles  v.  Clarke,  25  Cal.  317. 

2  Ibid. 

8  Clark  V.  Burnham,  2  Story,  1  ;  Anstice  v.  Brown,  6  Paige,  448  ;  Leg- 
gett  V.  Dubois,  5  Paige,  114.;  Alexander  v.  Warrance,  17  Mo.  230  ;  Mercer 
V.  Stark,  1  Sm.  &  M.  479  ;  Dennison  v.  Goehring,  7  Barr,  175. 

4  Dow  V.  Jewell,  21  N.  H.  470. 

s  James  v.  James,  41  Ai'k.  303  (more  than  20  j'ears). 

®  Delane  v.  Delane,  7  Bro.  P.  C.  279  ;  Clegg  v.  Edmonson,  8  De  G.,  M. 
&  G.  787;  Groves  v.  Groves,  3  Y.  &  J.  172;  Peebles  v.  Reading,  8  Ser.  & 
R.  484;  Graham  v.  Donaldson,  5  Watts,  471;  Haines  v.  O'Conner,  10 
Watts,  315 ;  Lewis  v.  Robinson,  id.  338 ;  Buckford  v.  Wade,  17  Ves.  97 ; 
Robertson  v.  Macklin,  3  Hayw.  70;  Strimpfler  v.  Roberts,  18  Penu.  St. 
283;  Best  v.  Campbell,  62  id.  478;  Douglass  v.  Lucas,  63  id.  11;  Sun- 
derland V.  Sunderland,  19  Iowa,  325 ;  Brown  v.  Guthrie,  27  Texas,  610 ; 
HaU  V.  Doran,  13  Iowa,  368;  Trafford  v.  Wilkinson,  3  Tenn.  Ch.  701; 
Newman  v.  Early,  id.  714.  And  see  Miller  v.  Blose,  30  Grat.  744 ;  Jen- 
nings V.  Shacklett,  id.  765  ;  King  v.  Purdee,  96  U.  S.  90 ;  Midmer  v.  Mid- 
mer,  26  N.  J.  Eq.  299 ;  Smith  v.  Patton,  12  W.  Va.  541 ;  McGivney  v. 
McGivney,  142  Mass.  156,  160. 

'  Dow  V.  JeweU,  18  N.  H.  340. 

188 


CHAP,   v.] 


STATUTES. 


[§  142. 


conscience  of  the  chancellor  and  makes  it  inequitable  to  in- 
terpose the  bar  is  suflicicnt.' 

§  142.  The  legislature  of  New  York  has  abolished  trusts 
resulting  from  the  payment  of  the  consideration  by  one  and 
the  taking  the  title  in  the  name  of  another,  except  in  cases 
where  the  nominal  grantee  has  taken  the  deed  without  the 
knowledge  and  consent  of  the  party  paying  the  money,  or 
excei)t  the  purchase  is  made  with  another's  money  in  viola- 
tion of  some  duty  or  trust.^  (a)  But  the  statute  saves  the 
rights  of  creditors  of  the  party  paying  the  purchase-money  and 
taking  the  title  in  the  name  of  another.^     If  such  a  purchase 

1  Harris  v.  Mclntyre,  118  111.  275. 

2  Linsley  v.  Sinclair,  24  Mich.  .380. 

8  Rev.  Stat.  1859,  Part  11.  (Vol.  III.  p.  15),  c.  1,  art.  6,  §§  52,  53,  ,57; 
Bodine  v.  Edwards,  10  Paige,  504 ;  Brewster  v.  Power,  10  Paige,  502 ;  Wil- 
link  V.  Vanderveer,  1  Barb.  599 ;  Norton  v.  Storer,  8  Paige,  222 ;  Reid  v. 
Fitch,  11  Barb.  399;  Lounsbury  v.  Purdy,  16  Barb.  370  ;  18  N.  Y.  515; 
Jencks  v.  Alexander,  11  Paige,  019;  Watson  r.  Le  Row,  0  Barb.  481; 
Russell  V.  Allen,  10  Paige,  250  ;  Siemon  v.  Schurck,  29  N.  Y.  598 ;  Swin- 


(a)  This  statute  applies  only  to 
secret  trusts;  it  does  not  apply  to  an 
express  agreement  with  the  person 
supplying  the  consideration  that  the 
party  taking  the  title  in  his  own 
name  shall  hold  it  for  both  of  them. 
Mc  Arthur  v.  Gordon,  120  N.  Y.  597; 
Gage  V.  Gage,  43  N.  Y.  S.  810;  Bul- 
lenkamp  v.  Bullenkamp,  54  id. 
482.  See  Woerz  v.  Rademacher, 
120  N.  Y.  62;  Watt  v.  Watt  (Ky.), 
39  S.  W.  48;  Pope  v.  Dapray,  170 
111.  478,484;  Smith  v.  Mason  (Cal), 
55  Pac.  143 ;  Lee  v.  Tinken,  41  N. 
Y.  S.  979.  Sect.  53  of  the  New 
York  statute,  which  preserves  the 
right  to  a  resulting  trust  when  the 
grantee  named  in  a  conveyance, 
"  in  violation  of  some  trust,  shall 
have  purchased  the  lands  so  con- 
veyed with  moneys  belonging  to  an- 


other person,"  does  not  include  the 
grantee's  breach  of  jiromise  to  take 
the  deed  in  the  name  of  another 
who  has  furnished  the  consideration. 
Schierloh  v.  Schierloh,  148  N.  Y.  103. 
Under  the  statutes  of  New  York, 
when  a  trust  has  been  created  by  a 
third  person  for  a  debtor,  his  cred- 
itors can  reach  the  surplus  income 
only  after  providing  for  the  cestui's 
proper  support,  but  the  creditors 
may  resort  to  the  entire  reserved 
interest  when  the  trust  is  created  by 
the  debtor.  Schonck  r.  Barnes,  156 
N.  Y.  316,  321.  In  tliis  State,  one 
who  executes  an  invalid  oral  trust, 
by  conveying  land  and  receiving  tho 
proceeds,  is  a  trustee  of  personalty 
for  the  cestui  que  trust,  who  may  by 
action  recover  from  him  such  pro- 
ceeds. Bork  V.  Martin,  132  N.  Y.  280. 
189 


§   142,]  EESULTING   TRUSTS.  [CIIAP.    V. 

is  a  fraud  upon  creditors,  they  may  enforce  the  trust  in  equity, 
though  the  original  purchaser  and  payer  of  the  money  would 
have  no  remedy  ;  ^  but  if  the  debt  is  barred  by  a  discliarge  in 
bankruptcy,  the  creditor's  lien  is  gone.'^  In  Kentucky,  trusts 
resultiug  from  the  payment  of  the  money  and  the  purchase 
in  the  name  of  another  are  abolished,  but  an  action  is  given 
for  the  recovery  of  the  money  paid.^  In  Massachusetts,  the 
creditors  of  such  a  purchaser,  taking  the  title  in  the  name  of 
a  third  person,  may  levy  their  execution  upon  the  land,  in 
the  same  manner  as  if  the  purchaser  had  taken  the  title 
directly  to  himself.^  And  so  in  New  Hampshire.^  The  stat- 
ute of  New  York  has  been  strictly  construed,  and  therefore 
if  A.  makes  a  purchase,  and  pays  the  money,  and  takes  the 
title  in  the  name  of  B.,  upon  a  parol  trust  for  C,  it  is  not 
within  the  statute ;  and  C.  may  enforce  the  trust  as  against 
B.^  Statutes  similar  to  the  statute  of  New  York  have  been 
passed  in  Michigan  "^  and  Wisconsin.^  (a)   In  Louisiana,  express 

burne  v.  Swinburne,  28  N.  Y.  5G8;  Stover  t;.  Flock,  21  Barb.  162;  Safford 
V.  Hind,  39  Barb.  625;  Buffalo  R.  R.  Co.  v.  Lainpson,  47  Barb.  533;  Gil- 
bert V.  Gilbert,  1  Keyes  (N.  Y.),  159.  See  the  comments  of  Church,  Ch. 
J.,  upon  this  last  case,  in  Foote  v.  Bryant,  47  N.  Y.  561 ;  and  see  Gilbert 
V.  Gilbert,  2  N.  Y.  Dec.  256  ;  Farrell  v.  Lloyd,  69  Penn.  St.  239. 

1  Ibid.  ;  Jackson  v.  Forrest,  2  Barb.  Ch.  576  ;  McCartney  v.  Bostwick, 
32  N.  Y.  53. 

2  Ocean  Xat.  Bank  v.  Alcott,  46  N.  Y.  12. 

8  Martin  v.  Martin,  5  Bush,  47 ;  as  to  the  rule  in  Minnesota,  see  Dur- 
pee  V.  Pavitt,  14  Minn.  424. 

<  Gen.  Stat.  1860,  c.  103,  §  1;  Stat.  1844,  c.  107;  Foster  v.  Durant,  2 
Gray,  538 ;  amending  the  law  as  ruled  in  How  v.  Bishop,  3  Met.  26 ; 
Clark  V.  Chamberlain,  12  Allen,  257. 

*  Hutchins  v.  Heywood,  50  N.  H.  591. 

®  Siemon  v.  Austin,  33  Barb.  9;  Siemon  v.  Schurck,  29  N.  Y.  598; 
Foote  V.  Bryant,  44  N.  Y.  544. 

7  R.  S.  1846,  c.  63,  §  4;  Groesbeck  v.  Seeley,  13  Mich.  329;  Fisher  v. 
Fobe.';,  22  :Mich.  454. 

8  R.  S.  1858,  c.  84,  §§  7-9. 

(a)  See  Strong  v.  Gordon,  96  Wis.  219 ;  Graham  v.  Selbie,  8  S.  D.  604 ; 

476;  Gee  v.  Thrailkill,  45  Kansas,  Haaven  v.  Iloass,  60  Minn.  313. 
173;  Connolly  i;.  Keating,  102  Mich.  Under   the    Ala.    Code,   §1845, 

1;   Tiffany  v.    Tiffany,   110   iSlich.  which  declares  void  all  parol  trusts 
190 


CHAP,    v.]  STATUTES.  [§  ILo. 

trusts  have  been  abolished  ;  but  trusts  arising  from  the  nature 
of  transactions,  or  by  implication  of  law,  are  still  enforced  by 
the  courts.^ 

§  143.  As  before  stated,  if  a  purcliascr  of  an  estate  pays 
the  consideration-money,  and  takes  the  title  in  the  name  of 
a  stranger,  the  presumption  is  that  he  intended  some  benefit 
for  himself,  and  a  resulting  ti-ust  arises  for  him  ;  ^  but  if 
the  purchaser  take  the  conveyance  in  the  name  of  a  wife  or 
child  or  other  person,  for  whom  he  is  under  some  natural, 
moral,  or  legal  obligation  to  provide,  the  presumption  of  a 
resulting  trust  is  rebutted,  and  the  contrary  presumption 
arises,  that  the  purchase  and  conveyance  were  intended  to  be 
an  advancement  for  the  nominal  purchaser.^  The  transaction 
will  be  regarded  prima  facie  as  a  settlement  upon  the  nominal 

^  Gaines  v.  Chow,  2  How.  619;  McDonough's  Ex'rs  v.  Murdock,  15 
How.  367. 

2  Ante,  §  126. 

8  Murless  v.  Franklin,  1  Swanst.  17;  Grey  v.  Grey,  2  Swanst.  597;  Finch, 
340;  Dyer  v.  Dyer,  2  Cox,  93 ;  1  Watk.  Cop.  219;  Redington  v.  Reding- 
ton,  2  Ridg.  176;  Elliot  v.  Elliot,  2  Ch.  Cas.231 ;  Sidmouth  v.  Sidraouth, 
2  Beav.  451;  Thomas  v.  Chicago,  55  111.  403;  Graff  v.  Rohrer,  35  Md. 
327 ;  Christy  v.  Courtenay,  13  Beav.  96 ;  Lainplugh  v.  Lamplugh,  1  P. 
Wms.  Ill;  Goodright  v.  Hodges,  1  Watk.  Cop.  228;  Pole  v.  Pole,  1  Ves. 
76  ;  Woodman  v.  iMorrell,  2  Freem.  33 ;  Finch  v.  Finch,  15  Ves.  50  ; 
Mumnia  v.  Mumma,  2  Vern.  19  ;  Skeats  v.  Skeats,  2  Younge  &  C.  Ch.  9 ; 
Wait  V.  Day,  4  Denio,  439;  Wilton  v.  Devine,  20  Barb.  9;  Jackson  v. 
INIatsdorf,  11  Johns.  91;  Prosfrs  r.  Mclntire,  5  Barb.  424;  Partridge  v. 
Havens,  10  Paige,  678  ;  Guthrie  v.  Gardner,  19  Wend.  414  ;  Reid  v.  Fitch, 
11  Barb.  399;  Page  v.  Page,  8  N.  H.  187;  Astreen  v.  Flanagan,  3  Edw. 
Ch.  279;  Bodine  v.  Edwards,  id.  504  ;  Dennison  v.  Goehring,  7  Barr, 
182,  n. ;  Knouff  v.  Thompson,  16  Penn.  St.  357  ;  Shaw  v.  Read,  47  id.  90  ; 
Fleming  v.  Donahoe,  5  Ohio,  255;  Treraper  v.  Burton,  18  Ohio,  418; 
Stanley  v.   Brannon,  6  Blackf.  103;  Whitten  v.  Whitten,  3  Cush.  194; 

in  land,  the    oral   promise   of    the  Ward,  59    Conn.  188;    ]\Iaiinix    v. 

grantee  in  an  absolute  deed  of  real  Purcell,  40  Ohio  St.  102;  Robertson 

estate  to  hold  it  for  the  grantor's  v.  Reiitz  (Minn.),  74  N.   W.  133; 

use,  is  void,  and  the  trust  will  not  Kelso  v.  Kelso,  16  lud.  App.  615  ; 

be  enforced  in  equity  on  the  ground  Gowdy   v.  Gordon,  122  Ind.  533  ; 

that   the   grantee's    repudiation    of  Feeney    i'.    Howard,   79  Cal.  525  ; 

such    trust   is  a   fraud.      Brock   v.  Champlin  i-.  Champlin,  136  111.  309; 

Brock,  90   Ala.    86.     See  Ward  v.  Harris  v.  Daugherty,  74  Texas,  1. 

191 


§  143.]  RESULTING    TRUSTS.  [CHAP.    V, 

grantee ;  and  if  the  payer  of  the  money  claims  a  resulting  trust 
he  must  rebut  this  presumption  by  proper  evidence.^  (a)  Lord 
Ch.  B.  Eyre  stated  the  doctrine  thus :  "  The  circumstance 
of  one  or  more  of  the  nominees  being  a  child  or  children  of 
the  purchaser  is  held  to  operate  by  rebutting  the  resulting 
trust ;  and  it  has  been  determined  in  so  many  cases  that 
the  nominee  being  a  child  shall  have  such  operation,  as  a  cir- 
cumstance of  evidence,  that  it  Avould  be  disturbing  landmarks 
if  we  suffered  either  of  these  propositions  to  be  called  into 
question;  viz.,  that  such  circumstance  shall  rebut  the  result- 
ing trust,  and  that  it  sliall  do  so  as  a  circumstance  of  evidence. 
It  would  have  been  a  more  simple  doctrine  if  children  had 
been  considered  as  purchasers  for  valuable  consideration. 
That  way  of  considering  it  would  have  shut  out  all  the  cir- 
cumstances of  evidence  which  have  found  their  way  into  the 
cases,  and  would  have  prevented  some  very  nice  distinctions, 
not  very  easily  understood.  Considering  it  as  a  circumstance 
of  evidence,  there  must,  of  course,  be  evidence  admitted  on 
the  other  side.  Thus  the  question  is  resolved  into  one  of  intent, 
which  was  getting  into  a  very  wide  sea  without  very  certain 
guides."  -  (b)     And  Lord   Nottingham   pointed   out  that  the 

Fatheree  v.  Fletcher,  31  Miss.  265;  Welton  v.  Devine,  20  Barb.  9;  Butler 
V.  Ins.  Co.,  14  Ala.  777;  Douglass  v.  Price,  4  Rich.  Eq.  322;  Taylor  v. 
James,  4  Des.  9 ;  Thompson  v.  Thompson,  1  Yerg.  97  ;  Dudley  v.  Bos- 
worth,  10  Humph.  12;  Alexander  r.  Warrance,  2  Bennett,  230 ;  Cart- 
wright  V.  Wise,  14  111.  417 ;  Shepherd  ;;.  ^^Tiite,  10  Tex.  72  ;  Baker  v. 
Leathers,  3  Ind.  557;  Hill  v.  Pine  River  Bank,  45  N.  H.  300;  Dickenson 
V.  Davis,  44  N.  H.  647 ;  Miller  v.  Blose,  30  Grat.  744 ;  Kelly  v.  Karsner, 
72  Ala.  106 ;  Schuster  v.  Schuster,  93  Mo.  438  ;  Seibold  v.  Chrisman,75  Mo. 
308 ;  Read  v.  Huff,  40  N.  J.  Eq.  229  ;  Newman  v.  Early,  3  Tenn.  Ch.  716. 

1  Jackson  v.  Matsdorf,  11  Johns.  91 ;  Shepherd  v.  White,  10  Texas, 
72;  Proseus  JJ.  Mclntire,  5  Barb.  425;  Butler  v.  Ins.  Co.,  14  Ala.  777; 
Hill  V.   Pine  River  Bank,  45  N.   H.  300. 

2  Dyer  v.   Dyer,  2  Cox,  94.     AV^here  land  is  purchased  with  money 

(a)  See  Walston  v.  Smith,  70  Vt.  ton,  50  N.  J.  Eq.  500  ;  Beeman  v. 

19.  Beeman,   88  Hun,  14 ;    Francis   v. 

(J))  A  moral  consideration,  such  Wilkinson,   147   111.    370  ;    Noe   v. 

as  love  and  affection  for  one's  chil-  Roll,  134  Ind.  115;  Higbee  v.  Hig- 

dren  or  relatives,  does  not  establish  bee,   123  Mo.  287. 
a  resulting  trust.     Landon  v.  Hut- 
192 


CHAP,    v.]  STATUTES.  [§  144. 

law  of  resulting  trusts,  in  this  respect,  was  analogous  to  uses 
before  the  statute,"  for  the  feoffMieut  of  a  stranger,  hcforc  the 
statute,  without  consideration,  raised  a  use  in  the  feoffor  ; 
but  a  feoffment  by  a  fatlier  to  a  son,  witliout  other  considera- 
tion, raised  no  use  by  imj)lication  in  the  father,  for  the  con- 
sideration of  blood  settled  the  use  in  the  son,  and  made  it 
an  advancement."  '  Where  the  husband  j)urchases  land  for 
his  wife  with  his  own  funds,  taking  the  obligation  of  the 
vendor  to  execute  a  deed  to  the  wife,  the  latter,  or  after  her 
death  her  children,  can  enforce  a  conveyance  of  the  legal  title, 
although  the  said  obligation  had  been  pledged  to  the  vendor 
by  the  husband  as  a  security  for  a  loan  to  himself.^ 

§  144.  This  rule  embraces  all  persons  for  whom  the  pur- 
chaser is  under  any  obligation,  legal  or  moral,  to  provide.  It 
embraces  daughters  as  well  as  sons,^  although  a  distinction 
was  once  attempted,  on  the  ground  that  it  is  not  so  common 
to  settle  lands  upon  daughters  as  upon  sons.*  It  embraces 
estates  bought  in  the  name  of  a  wife,^  and  in  the  joint  names 

of  the  wife  and  the  deed  taken  in  name  of  the  husband,  it  is  a  ques- 
tion of  fact  and  intention  wliether  the  husband  reduced  the  money  to 
possession  before  paying  it  over  for  the  deed.  Moulton  v.  Haley,  57 
N.  H.  184. 

1  Grey  v.  Grey,  2  Swanst.  598. 

2  Morris  v.  Hanson,  78  Ala.  230. 

8  Lady  Gorge's  Case,  Cro.  Car.  550 ;  2  Swanst.  600 ;  Clarke  v.  Dan- 
vers,  1  Ch.  Cas,  310;  Woodman  v.  Morrell,  2  Freem.  33;  Jennings  v. 
Selleck,  1  Vern.  4G7 ;  Bedwell  v.  Froome,  2  Cox,  97 ;  Back  v.  Andrew, 
2  Yem.  120 ;  Baker  v.  Leathers,  3  Ind.  558 ;  Murphy  v.  Xathans,  46 
Penn.  St.  508;  Astreen  v.  Flanagan,  3  Edw.  Ch.  279,  was  the  case  of 
an  adopted  daughter. 

4  Gilb.  Lex.  Pra.^t.  272. 

6  Glaister  v.  Hewer,  8  Ves.  190;  Dummer  v.  Pitcher,  2  M.  &  K.  262; 
Kingdom  r.  Bridges,  2  Vern.  67;  Christ's  Hosi)ital  v.  Budgin,  id.  683; 
Back  V.  Andrew,  id.  120;  Benger  v.  Drew,  1  P.  Wms.  780;  Wallace 
r.  Bowens,  28  Vt.  138;  Guthrie  v.  Gardner,  19  Wend.  414;  Welton  v. 
Devine,  20  Barb.  9 ;  Garfield  v.  Ilatmaker,  15  N.  Y.  475 ;  Jencks  v.  Alex- 
ander, 11  Paige,  619  ;  Astreen  v.  Flanagan,  3  Edw.  Ch.  279;  Kline's  App. 
39  Penn.  St.  463;  Alexander  c.  Warrance,  2  Bennett,  230;  Drew  v. 
Martin,  32  L.  J.  Ch.  367 ;  GrafE  v.  Rohrer,  35  Md.  327  ;  Johnson  v.  John- 
son, 16  Minn.  512;  Thomas  v.  Chicago,  55  111.  403.  But  if  there  is  no 
VOL.  I.  — 13  193 


§  144.]  RESULTING   TRUSTS.  [CHAP.    V. 

of  the  wife  and  the  purchaser  ;^  also,  in  the  names  of  the  wife 
and  childrcn.2  So,  in  the  names  of  a  son  and  a  stranger,  in 
which  case  the  moiety  to  the  son  will  be  an  advancement,^ 
but  the  moielv  in  the  name  of  the  stranger  will  be  presumed 
to  be  in  trust  for  the  purchaser.*  And  if  a  grandparent  pur- 
chase in  the  name  of  a  grandchild,  whether  the  father  is  or  is 
not  dead,  it  will  be  presumed  to  be  an  advancement,  and  not 
a  trust ;  ^  and  so  a  purchase  by  a  person  who  has  placed  him- 
self in  loco  parefttis  to  the  nominal  grantee  will  be  presumed 
to  be  a  settlement,  and  not  a  trust,  for  the  purchaser.^  And 
if  the  nominal  grantee  is  an  illegitimate  child  of  the  purchaser, 
the  same  presumption  will  arise  i"^  or  if  the  nominal  grantee 
be  an  idiot,^  or  a  son-in-law.^  But  if  the  nominal  grantee  be 
a  brother  of  the  purchaser,  the  law  will  presume  a  trust  and 
not  an  advancement,  on  the  ground  that  there  is  no  such 
obligation  on  one  brother  to  support  or  provide  for  another, 
that  the  purchase  can  be  presumed  to  be  made  for  sucli  a  pur- 
pose ;  ^^  so  if  one  sister  pay  the  money,  and  take  the  convey- 

legal  marriage,  the  conveyance  will  be  presumed  to  be  a  trust,  and  not  an 
advancement.     Soar  v.  Foster,  4  K.  &  J.  152. 

1  Ibid. 

2  Dummer  v.  Pitcher,  2  M.  &  K.  262 ;  .5  Sim.  35;  Kingdom  v.  Bridges, 
2  Vern.  67  ;  Back  v.  Andrew,  id.  120;  Stevens  v.  Stevens,  78  Maine,  92. 

2  Lamplugh  v.  Lamplugh,  1  P.  Wms.  Ill ;  Kingdom  v.  Bridges,  2 
Vern.  67;  RumboU  v.  Rumboll,  1  Eden,  17.  "  Ibid. 

5  Ebrand  v.  Dancer,  2  Ch.  Cas.  26 ;  Lloyd  r.  Read,  1  P.  Wms.  607 ; 
Currant  v.  Jago,  1  Coll.  265,  n.  (c)  ;  Tucker  v.  Burrow,  2  Hem.  &  M. 
525;  Kilpin  r.  Kilpin,  1  M.  &  K.  520. 

®  Ibid.  But  it  is  said  that  such  purchase  will  not  be  presumed  to  be 
an  advancement  if  the  conveyance  is  taken  to  a  remote  relative,  or  to  a 
stranger,  although  the  real  purchaser  may  have  placed  himself  in  loco 
parentis.  Tucker  r.  Burrow,  2  Hem.  &  M.  515 ;  Powys  v.  Mansfield,  3 
My.  &  Cr.  359;  Miller  i:  Blose,  30  Grat.  714. 

7  Beckford  v.  Beckford,  Lofft.  490;  Kilpin  v.  Kilpin,  1  M.  &  K.  556, 
Anon.,  1  Wal.  Jr.  107j  Kimmcl  v.  McRight,  2  Barr,  38  ;  Soar  v.  Foster, 
4  K.  &  J.  160.  But  it  is  said  that  this  rule  will  not  apply  to  the  illegiti- 
mate child  of  a  legitimate  child.     Tucker  v.  Burrow,  2  Hem.  &  M.  525. 

8  Cartwright  v.  Wise,  14  111.  417. 

•  Baker  v.  Leathers,  3  Porter,  558. 

^'  Maddison  r.  Andrew,  1  Yes.  58;  Edwards  v.  Edwards,  39  Penn.  St. 
369  ;  Foster  v.  Foster,  34  L.  J.  Ch.  428. 
194 


CHAK  v.]        PURCHASES    IN    NAME    OF   WIFE    OR   CHILD.         [§   145. 

ance  in  tlic  name  of  another  sister.^  And  where  the  nominal 
grantee  stands  in  the  relation  of  mother  or  nepheiu  to  the  real 
purchaser,  no  presumption  of  an  advancement  or  settlement 
will  arise,  but  it  will  be  presumed  to  be  a  trust,  unless  the 
purchaser  stands  in  loco  parentis  to  the  nominal  grantee.^ 
And  if  tlie  son  stands  in  the  relation  of  solicitor  to  his  mother, 
a  purchase  made  by  her,  in  his  name,  will  be  presumed  to  be 
a  trust,  as  the  relation  of  solicitor  and  client  rebuts  the  pre- 
sumption of  an  advancement,^  and  so,  it  is  said,  the  rule  does 
not  apply  to  any  purchase  made  by  a  mother  in  the  name  of 
a  child.*  A  purchase  by  a  wife  in  the  name  of  her  husband 
may  be  shown  to  be  a  trust.^  The  rule  applies  to  personal  as 
well  as  real  property.^ 

§  145.  The  general  principle  is,  that  a  purchase  by  the 
parent,  in  the  name  of  a  child,  is  presumed  to  be  an  advance- 
ment, and  not  a  trust,  (a)     This  presumption  is  one  of  fact, 

1  Keaton  v.  Cobb,  1  Dev.  Ch.  439 ;  Field  v.  Lonsdale,  14  Jur.  995;  13 
Beav.  78. 

2  Currant  v.  Jago,  1  Coll.  C.  C.  263;  Laraplugh  v.  Lamplugh,  1  P. 
Wms.  Ill;  Taylor  v.  Alston,  2  Cox,  97;  Edwards  v.  Field,  3  Mad.  237; 
Jackson  v.  Feller,  2  Wend.  465. 

8  Garrett  v.  Wilkinson,  2  De  G.  &  Sm.  244. 

4  In  re  De  Visme,  2  De  G.,  J.  &  Sm.  17. 

5  McGovern  v.  Knox,  21  Ohio  St.  552. 

«  Devoy  V.  Devoy,  3  Sm.  &  Gif.  403 ;  Dumraer  v.  Pitcher,  2  M.  &  K. 
262 ;  Bone  v.  Pollard,  24  Beav.  283 ;  Sidmouth  v.  Sidmouth,  2  Beav.  447 ; 
Fox  V.  Fox,  15  Jr.  Ch.  89. 

(«)  An  advancement,  and  not  a  Ilandlan  v.  Handlan,  42   W.    Va. 

trust,  is  presumed  when  the  person  309  ;  Deck  v.  Tabler,  41  W.  Va.  332. 

who  pays  for  property  purchased  is  Thus,  a  gift  to  the  donor's  child,  if 

under  a  natural  or  moral  obligation  reasonable  and  provident,  especially 

to  provide  for  the  person  receiving  if  made  during  the  child's  minority, 

the  conveyance.   Danf orth  v.  Briggs,  is  presumed  to  be  valid  and  irrevo- 

89  Maine,  316  ;  Whitley  v.  Ogle,  47  cable,  even  though  a  supposed  claim 

N.  J.  Eq.  67  ;  Olipant  v.  Liversidge,  for  services  is    not    legally    valid. 

1 12  111.  160  ;  Brownell  v.  Stoddard,  Molyneux  v.  Fletcher,  [1.S98]  1  Q.  B. 

42  Neb.  177;  Klamp  v.  Klamp,  51  648;  Yeakel  v.  McAtee,  156  Peiin. 

Neb.  17  ;  Roberts  v.  Remy,  5G  Ohio  St.  600  ;  Parker  v.  Parker,  45  N.  J. 

St.  249;  Paddock  i;.  Adams,  id.  242;  Eq.  224  ;  Cohen  v.  Parish  (Ga.),  31 

Kobarg  v.  Greeder,  51   Neb.   365;  S.  E.  205;  Walker  i.  Brown  (Ga.),  30 

195 


§  145.] 


RESULTING  TRUSTS. 


[chap.  Y. 


and  may  be  rebutted  by  evidence  or  circumstances  ;  and  some 
courts  have  been  astute  in  finding  circumstances  and  subtile 


id.  867.  "  In  such  cases  the  pre- 
sumption of  intention  to  become 
the  owner  of  the  property  arising 
from  the  payment  of  the  purchase- 
money  is  rebutted  by  the  stronger 
counter  presumption  of  an  intention 
to  make  an  advancement  to  the 
child  or  wife."  Long  v.  King  (Ala.), 
23  So.  5.34;  Smithsonian  Inst'n  v. 
Meech,  169  U.  S.  398,  Walston  v. 
Smith,  70  Vt.  19.  Acceptance  by 
such  beneficiaries  is  presumed;  if 
minors,  the  law  puts  in  an  accept- 
ance for  them.  Brunson  v.  Henry, 
140  Ind.  455,  465.  Such  presump- 
tion does  not  arise  when  the  rela- 
tionship does  not  obligate  to  sup- 
port, as  when  the  grantee  in  the 
deed  is  the  purchaser's  brother. 
Camden  v.  Bennett,  64  Ark.  155 ; 
Teegarden  v.  Lewis,  145  Ind.  98 ; 
Hall  V.  Kappenberger,  97  Mo.  509. 
And  the  presumption,  when  existing, 
is  only  a  rebuttable  presumption  of 
fact.  Smithsonian  Inst'n  v.  Meech, 
169  U.  S.  398 ;  Ilallenback  v.  Rog- 
ers (N.  J.  Eq.),  40  Atl.  576  ;  Jaquith 
V.  Mass.  Bap.  Convention,  172  Mass. 
439.  A  parent's  legacy  to  his  child  in 
his  will  is  not  to  be  reduced  because 
of  his  previous  gifts  to  such  child, 
in  the  absence  of  any  agreement  to 
that  eSect.  Jacques  v.  Swasey,  153 
Mass.  596.  A  hu.sband,  though 
embarrassed,  may  convey  to  a  trus- 
tee for  his  family  his  interest  in  her 
real  estate  when  there  is  no  fraud 
and  there  is  a  consideration  which 
can  be  fairly  regarded  in  equity  as 
valuable.  Hitz  v.  National  Met. 
Bank,  111  U.  S.  722;  Mattoon  v. 
McGrew,  112  U.  S.  713.  It  is  held 
196 


that  money  received  by  a  wife  from 
her  father's  estate,  and  by  her  deliv- 
ered to  her  husband  without  any 
promise,  is  not  held  by  him  under  a 
resulting  trust  because  he  after- 
wards told  her  he  has  invested  it 
for  her,  but  in  fact  took  the  title  in 
his  own  name.  Nashville  Trust  Co. 
V.  Lannora  (Tenn.)  36  S.  W.  977  ; 
Acker  v.  Priest,  92  Iowa,  610.  If  the 
wife's  father  simply  conveys  prop- 
erty to  his  son-in-law,  as  an  advance- 
ment, in  consideration  of  love  and 
affection  for  her,  the  husband's  title 
is  not  charged  with  a  trust  for  the 
wife  or  her  heirs.  Higbee  v.  Hig- 
bee,  123  Mo.  288 ;  Noe  v.  Roll,  134 
Ind.  115;  Lewis  v.  Stanley,  148  Ind. 
351  ;  Heath  v.  Carter,  20  Ind.  App. 
83 ;  50  N.  E.  318  ;  Rogers  v.  Rogers 
(S.  C),  29  S.  E.  812.  When  a  hus- 
band invests  his  wife's  money  in 
land,  and  takes  the  title  in  his  own 
name,  there  is  a  resulting  trust  in 
the  land  which  she  can  enforce  to 
the  extent  that  her  money  is  clearly 
shown  to  have  been  invested  there- 
in. See  Light  v.  Zeller,  144  Penn. 
St.  570,  582  ;  Miller  v.  Baker,  160 
id.  172 ;  166  id.  414  ;  Lloyd  v. 
Woods,  163  id.  63 ;  Lau's  Estate, 
176  id.  100  ;  Weymouth  v.  Sawtelle, 
14  Wash.  32 ;  Barger  v.  Barger,  30 
Oregon,  268 ;  Fawcett  v.  Fawcett, 
85  Wis.  332;  Shupe  v.  Bartlett 
(Iowa),  77  N.  W.  455  ;  Shelby  v. 
Tardy,  84  Ala.  327  ;  Bell  v.  Stewart, 
98  Ga.  609;  Bean  v.  Bridgers,  108 
N.  C.  276  ;  Grantham  u.  Grantham , 
34  S.  C.  .504;  Hill  v.  Meinhard, 
39  Fla.  Ill,  117;  Throckmorton  t-. 
Throckmorton,  91  Va.  42.     In  such 


CHAP,  v.]         PURCHASES    IN    NAME    OP   WIFE    OR   CHILD.         [§  145. 

distinctions  to  rebut  this  presumption.  Thus,  if  the  child 
was  an  infant,  it  was  tliought  that  a  parent  would  not  confer 
upon  it  an  absolute  jiroperty,  which  it  was  incapable  of  man- 
aging,^ and  so,  if  the  interest  was  reversionary,  and  not  capa- 
ble of  present  enjoyment,  it  was  said  that  the  father  could 
not  have  intended  it  as  a  provision  and  settlement,  or  ad- 
vancement.2  Again,  if  a  father  took  the  conveyance  in  his 
own  name  jointly  with  his  son,  it  was  supposed  that  the  pre- 
sumption of  an  advancement  was  rebutted,  on  the  ground 
that  the  father  had  some  interest  in  one-half,  and  might  have 
the  whole  by  survivorship,  while  the  son  could  not  sever  the 
joint  tenancy  till  he  arrived  at  age.^  And  if  a  father  took  a 
grant  to  himself  and  sons  ui)on  successive  lives,  it  was  thought 
that,  as  the  father  must  use  some  names  beside  his  own,  those 
of  his  sons,  being  used  from  prudential  and  family  reasons, 
rebutted  the  presumption  of  an  advancement  and  raised  the 
presumption  of  a  trust ;  ^  and  so  the  circumstance  that  a  child 
was  already  provided  for  was  held  to  rebut  the  presumption 
of  a  further  advancement.^    Again,  if  a  father  purchased  in 

1  Billion  V.  Stone,  2  Freem.  169;  Nels.  68;  2  Freem.  128,  c.  151. 

2  Runiboll  V.  ItumboU,  2  Eden,  17;  Finch  v.  Fiucli,  15  Ves.  43;  Mur- 
less  V.  Franklin,  1  Swanst.  13. 

8  Stileman  v.  Ashdown,  2  Atk.  480;  Pole  v.  Pole,  1  Yes.  76. 

*  Dyer  v.  Dyer,  2  Cox,  95;  1  Watk.  Cop.  221;  Dickinsons.  Shaw, 
2  Cox,  95. 

6  Elliot  V.  Elliot,  2  Ch.  Cas.  231 ;  Pole  v.  Pole,  1  Yes.  76 ;  Grey  v. 
Grey,  2  Swanst.  600;  Finch,  341;  Lloyd  v.  Read,  1  P.  Wms.  608;  Red- 
iugtou  V.  Redington,  3  Ridg.  190. 

case  the  husband  has  the  burden  of  Hews    v.   Kenney,    43    Xeb.    815  ; 

proof  to  show  that  the  wife  made  a  Cleghorn    v.    Obernalte,    53    Neb. 

loan  or  gift  of  the  money  to  him.  687,   690  ;    Smith   v.   Willard,   174 

Berry  v.  Wiedman,  40  W.  Ya.  36;  111.  538.     See  Moore   v.  Moore,  165 

Printup  t'.  Patton,  91  Ga.  422;  Lof-  Penn.   St,  464.     But  the  wife's  in- 

tis  V.  Loftis,  94  Tenn.  232 ;  Benbow  terest  will   be  protected  in  equity, 

V.  Moore,  114  N.  C.  263.     The  wife  when  her  conduct  is  free  from  sus- 

may   be   estopped   in    equity   from  picion,   against   such  of    his   credi- 

claiming  such  land  when  her  hus-  tors  as  did  not  rely  upon  his  apparent 

band's  creditors   are   permitted    to  ownership  of  the  property.     Besson 

contract   with   him   on   the    under-  v.  Eveland,  L'O  N.  J.  Eq.  468  ;  IIows 

standing   that  it  is    his   property,  v.  Kenney,  supra. 

197 


§  146.]  RESULTING   TRUSTS.  [CHAP.    V. 

the  naniG  of  an  adult  son,  and  kept  the  actual  possession  of 
the  estate,  and  received  the  rents  and  profits,  the  presumption 
of  an  advance  was  supposed  to  be  rebutted,  and  the  presump- 
tion of  a  trust  created.^ 

§  146.  But  these  objections  have  all  been  overruled,  and 
from  the  manner  these  distinctions  are  disposed  of,  a  general 
principle  applicable  to  every  case  may  be  stated,  *'  that  reasons 
which  partake  of  too  great  a  degree  of  refinement  should  not 
prevail  against  a  rule  of  property  which  is  so  well  established 
as  to  become  a  landmark,  and  which,  whether  right  or  wrong, 
should  be  carried  throughout,"  "^  and  Lord  Eldon  added,  that 
this  principle  of  law,  that  a  purchase  is  presumed  prima  facie 
to  be  an  advancement,  is  not  to  be  frittered  away  by  mere  re- 
finements.^ Therefore  it  is  now  established  that  a  purchase  in 
the  name  of  an  infant  child  is  prima  facie  an  advancement,* 
and  the  purchase  of  a  reversionary  interest  in  the  name  of  a 
child  falls  within  the  same  rule  ;  ^  so  a  purchase  by  a  father, 
in  the  joint  names  of  himself  and  son,^  or  in  the  joint  names 
of  a  son  and  a  stranger,'^  and  so  if  a  father  take  an  estate  for 
successive  lives,  as  his  own  and  his  sons'.^  If  a  child  in  whose 
name  the  purchase  is  made  is  already  provided  for,  it  will  be 
a  circumstance  to  be  considered  with  other  evidence ;  but  it 
will  not  of  itself  rebut  the  presumption  of  an  advancement. 
Lord  Loughborough  said,  "  that  a  purchase  under  such  circum- 

1  Gilb.  Lex  Pr«t.  271. 

2  By  Ch.  B.  Eyre,  Dyer  v.  Dyer,  2  Cox,  98. 
8  Finch  V.  Finch,  15  Ves.  50. 

*  Ibid.;  Mumma  v.  Mumma,  2  Vera.  19;  Lamplugh  r.  Lamplugh,  1 
P.  Wms.  Ill;  Lady  Gorge's  Case,  2  Swanst.  600;  Collinson  v.  CoUinson, 
3  De  G.,  M.  &  G.  403;  Skeats  v.  Skeats,  2  Y.  &  C.  Ch.  9;  Christy  v. 
Courtenay,  13  Beav.  19. 

5  RumboU  V.  Rumboll,  2  Eden,  17;  Murless  v.  Franklin,  1  Swanst.  13; 
Finch  V.  Finch,  15  Ves.  43. 

6  Dummer  v.  Pitcher,  2  M.  &  K.  272;  Grey  v.  Grey,  2  Swanst.  599; 
Back  V.  Andrew,  2  Vern.  120 ;  Scroope  v.  Scroope,  1  Ch.  Cas.  27  ;  Thomp- 
son V.  Thompson,  1  Yerg.  97. 

'  Hayes  v.  Kingdom,   1  Vern.   34;   Kingdom  v.  Bridges,  2  id.  67; 
Lamplugh  V.  Lamplugli,  1  P.  Wms.  111. 
8  Dyer  v.  Dyer,  2  Cox,  95. 
198 


CHAP,    v.]        rURCHASES   IN   NAME   OF   WIFK   Oil   CHILD.        [§  147. 

stances  by  a  father  in  tlie  name  of  a  son  w««  not,  hut  might  be, 
a  trust  fur  the  father.'"  If  a  father  purchase  in  the  name  of 
a  son,  whether  an  infant  or  an  adult,  and  keep  the  actual 
possession  of  the  estate,  and  receive  the  profits,  it  will  be  pre- 
sumed tiiat  the  purchase  was  an  advancement  ;2  for  if  the  son 
was  an  infant,  the  father  would  be  its  natural  guardian,  or 
quasi  guardian,  and  protector,  and  thus  receive  the  rents  of 
the  estate.^  And  if  the  son  was  an  adult,  the  natural  rever- 
ence and  submission  due  from  children  to  their  parents  would 
account  for  the  circumstances.^  But  any  contemporaneous 
acts  wholly  inconsistent  with  the  intention  of  an  advancement 
to  the  child  will  make  him  a  trustee  for  the  father.  Thus,  if 
there  is  any  circumstance  accompanying  the  purchase  which 
explains  why  it  was  taken  in  the  wife's  or  child's  name,  and 
shows  that  it  was  not  intended  to  be  an  advancement,  but  was 
intended  to  be  a  trust  for  the  husband  or  father,  the  presump- 
tion of  an  advancement  will  be  rebutted,  and  the  inference  of 
a  trust  will  be  established.^ 

§  147.  Whether  a  purchase  in  the  name  of  a  wife  or  child 
is  an  advancement  or  not,  is  a  question  of   pure  intention, 

1  Ibid.  93;  Redington  v.  Redington,  3  Ridg.  190;  Sidmouth  v.  Sid- 
mouth,  2  Beav.  456;  Kilpin  v.  Kilpiii,  1  M.  &  K.  542. 

^  Grey  v.  Grey,  2  Swanst.  GOO ;  Redington  v.  Redington,  3  Ridg.  190 ; 
Lamplugh  v.  Lamplugh,  1  P.  Wms.  111. 

»  iMuinma  v.  Mumma,  2  Vern.  19  ;  Fox  r.  Fox,  15  Ir.  Ch.  89 ;  Taylor 
V.  Taylor,  1  Atk.  386;  Lamplugh  v.  Lamplugh,  1  P.  Wms.  Ill;  Lloyd  v. 
Read,  id.  608;  Lady  Gorge's  Case,  Cro.  Car.  550;  2  Swanst.  600;  Stile- 
man  V.  Ashdovvn,  2  Atk.  4'~i0;  Christy  v.  Courtenay,  13  Beav.  96;  Paschall 
r.  Hinderer,  28  Ohio  St.  568. 

*  Grey  v.  Grey,  2  Swanst.  600;  Dyer  r.  D^-er,  2  Cox,  95;  Woodman 
V.  Morrell,  2  Freem.  32,  note  by  Ilovenden ;  Shales  v.  Shales,  id.  252  ; 
Scawen  v.  Scaweu,  1  Y.  &  C.  Ch.  65;  :\Iurless  v.  Franklin,  1  Swanst.  17; 
Redington  v.  Redington,  3  Ridg.  190:  Sidmouth  v.  Sidmouth,  2  Beav. 
447 ;  Elliot  v.  Elliot,  2  Ch.  Cas.  231 ;  Williams  r.  Williams,  32  Beav.  370  ; 
Lloyd  V.  Read,  1  P.  Wms.  007. 

6  Pranki-rd  v.  Prankerd,  1  S.  &  S.  1 ;  Baylis  v.  Newton,  1  Yern.  28; 
Birch  V.  Blagrave,  Arab.  264;  Farr  v.  Davis,  8  East,  354;  Perkins  v. 
Nichols,  11  Allen,  542;  Balford  v.  Crane.  1  Greene,  Ch.  205;  Skillman  v. 
Skillinan,  2  McCartor,  478;  Gibson  r.  Foote.  40  :Miss.  7S8;  Cook  r.  Bre- 
mond,  27  Tex.  457;  Sunderland  v.  Sunderland,  19  Iowa,  325;  Clark  v. 
Clark,  43  Yt.  C85. 

199 


§  147.]  RESULTING    TEUSTS.  [CHAP.   V. 

though  presumed  in  the  first  instance  to  be  a  provision  and 
settlement ;  therefore,  an}-  antecedent  or  contemporaneous 
acts  or  facts  may  be  received,  either  to  rebut  or  support  the 
presumption,^  and  any  acts  or  facts  so  immediately  after  the 
purchase  as  to  be  fairly  considered  a  part  of  the  transaction 
may  be  received  for  the  same  purpose.^  (a)    And  so  the  declara- 

1  Christy  v.  Courtenay,  13  Beav.  96;  Baylis  v.  Newton,  2  Vern.  28; 
Shales  v.  Shales,  2  Freeiu.  252;  Tucker  v.  Burrow,  2  Hem.  &  M.  524; 
Coliinson  v.  Collinson,  3  De  G.,  M.  &  G.  409;  Murless  v.  Franklin,  1 
Swanst.  19 ;  Lloyd  v.  Read,  1  P.  Wms.  607 ;  Taylor  v.  Alston,  cited  2 
Cox,  96 ;  Grey  v.  Grey,  2  Swanst.  600 ;  Williams  v.  Williams,  32  Beav. 
370;  Redington  v.  Redington,  3  Ridg.  177;  Rawleigh's  Case,  cited  Hard. 
497 ;  Prankerd  v.  Prankerd,  1  S.  &  S.  1 ;  Swift  v.  Davis,  8  East,  354,  n. 
(a) ;  Hall  v.  Hall,  1  Connor  &  Law,  120 ;  Taylor  v.  Taylor,  4  Gilm.  303 ; 
Slack  V.  Slack,  26  Miss.  290;  Johnson  v.  Matsdorf,  11  Johns.  91;  Butler 
V.  M.  Ins.  Co.,  14  Ala.  777;  Dudley  v.  Bosworth,  10  Humph.  12;  Hayes 
V.  Kindersley,  2  Sm.  &  Gif.  194;  Peer  v.  Peer,  3  Stockt.  432;  Persons  v. 
Persons,  25  N.  J.  Eq.  250 ;  Milner  v.  Freeman,  40  Ark.  62. 

2  Jeans  v.  Cooke,  24  Beav.  521;  Redington  v.  Redington,  3  Ridg.  196; 
Prankerd  v.  Prankerd,  1  S.  &  S.  1;  Murless  v.  Franklin,  1  Swanst.  17  ; 
Swift  V.  Davis,  8  East,  354,  n.  (a)  ;  Robinson  v.  Robinson,  45  Ark.  481. 

(o)  A  resulting  trust  arises  when  ment  from  the  wife's  separate  es- 
a  husband  pays  with  his  wife's  tate  to  her  husband  is  presumably  a 
funds  for  property  purchased  in  his  gift.  Bennett  i'.  Bennett,  37  W. 
own  name,  even  though  the  pay-  Va.  396 ;  Clark  v.  Patterson,  158 
ment  is  made  after  the  purchase,  in  Mass.  388  ;  Jewell  v.  Clay  (Iowa), 
instalments,  or  to  pay  off  a  mort-  77  N.  W.  511 ;  Beecher  v,  Wilson, 
gage  for  the  purchase  price  or  other  84  Va.  813.  The  rule  that  a  con- 
iucumbrance  ;  but  in  general  a  re-  veyance  by  a  husband  to  his  wife  is 
suiting  trust  is  not  established  by  a  presumed  to  be  a  gift  or  advance- 
payment  or  agreement  subsequent  ment  does  not  apply  when  his  en- 
to  the  purchase.  Irick  i;.  Clement,  tire  estate  is  thus  conveyed.  In  such 
49  N.  J.  Eq.  590 ;  Gilchrist  t'.  case  a  resulting  trust  will  be  more 
Brown,  165  Penn.  St.  275  ;  Howard  readily  inferred.  Pool  v.  Phillips, 
V.  Howard,  52  Kansas,  469  ;  Hamil-  167  111.  432.  See  Bacon  v.  Devinney, 
ton  V.  Buchanan,  112  N.  C.  463;  55  N.  J.  Eq.  449;  Goelz  y.  Goelz, 
Taylor  v.  Miles,  19  Oregon,  550;  157111.  33  ;  Fay  v.  Morrison,  1.59  111. 
see  Milner  v.  Stanford,  102  Ala.  244  ;  Gruhn  v.  Ricliardson,  128  111. 
277  ;  Greaves  v.  Atkinson,  68  Miss.  178 ;  Lane  v.  Lane,  80  Maine,  570  ; 
598;  Moorman  v.  Arthur,  90  Va.  Whitley  v.  Ogle,  47  N.  J.  Eq.  67  ; 
455  ;  Barlow  v.  Barlow,  47  Kansas,  Gilliland  v.  Gilliland,  96  Mo.  522  : 
676 ;  supra,  §  145,  n.  (a).  A  pay-  see  Moore  v.  Crawford,  130  U.  S. 
200 


CHAP,   v.]  EVIDENCE.  [§  147. 

tions  of  the  real  purchaser,  either  before  or  at  the  time  of  the 
])urcha.se,  may  be  received  to  show  wliethcr  lie  intended  it  as 
an  advancement  or  a  trust.'  Such  declarations  are  received, 
not  as  declarations  of  a  trust  by  parol  or  otherwise,  but  as 
evidence  to  show  what  the  intention  was  at  the  time.  They 
are  parts  of  the  transaction,  or  words  accompanying  an  act.^ 
The  real  purchaser,  if  otherwise  competent,  may  be  a  witness 
to  state  what  his  objects,  purposes,  and  intentions  were  in 
making  the  purchase  and  in  taking  the  title  in  the  name  of  his 
wife  or  child.^  Of  course,  declarations  made  by  the  husband 
or  father  after  the  purchase  are  incompetent  to  control  the 
effect  of  the  prior  transaction.*  But  such  declarations  may 
be  used  by  the  wife  or  child  against  the  purchaser  to  show 
that  it  was  a  settlement  and  not  a  trust.^  And  the  after 
declarations  of  the  nominal  grantee  may  be  used  against  him, 
but  not  in  his  favor.^  But  the  declarations  must  be  direct 
and  certain,  and  where  possible  should  be  corroborated  by 
other  facts  and  circumstances ;  for  courts  will  not  act  upon 

1  Devoy  v.  Devoy,  3  Sm.  &  Gif.  403 ;  Grey  v.  Grey,  2  Swanst.  594  ; 
Kilpin  V.  Kilpin,  1  M.  &  K.  520;  Sidmouth  v.  Sidmouth,  2  Beav.  455; 
Scawen  v.  Scawen,  1  Y.  &  C.  Ch.  65. 

*  Ibid. ;  Baker  v.  Leathere,  3  Ind.  558- 

8  Devoy  v.  Devoy,  3  Sm.  &  Gif.  403  ;  Stone  v.  Stone,  3  Jur.  (x.  s.)  708. 

*  Tremper  r.  Burton,  18  Ohio,  418  ;  Christy  v.  Courtenay,  13  Beav.  90  ; 
TVilliams  v.  Williams,  32  Beav.  32 ;  Sidmouth  v.  Sidmouth,  2  Beav.  456 ; 
Elliot  V.  Elliot,  2  Ch.  Cas.  231 ;  Woodman  v.  Morrell,  2  Freera.  33;  Finch 
V.  Finch,  15  Ves.  51  ;  Birch  v.  Blagrave,  Arab.  206  ;  Skeats  v.  Skeats,  2 
y.  &  C.  Ch.  9  ;  Gilb.  Lex  Prfet.  271 ;  Murless  v.  Franklin,  1  Swanst.  13  ; 
Crabb  v.  Crabb,  1  M.  &  K.  519  ;  Prankerd  v.  Prankerd,  1  S.  &  S.  1 ;  Hub- 
ble V.  Osborne,  31  Ind.  249. 

^  Redington  v.  Redington,  3  Ridg.  100  ;  Sidmouth  v.  Sidmouth,  2 
Beav.  455. 

°  Scawen  v.  Scawen,  1  N.  C.  C.  65 ;  Jeans  v.  Cook,  24  Beav.  521 ;  Sid- 
mouth V.  Sidmouth,  2  Beav.  455 ;  Pole  v.  Pole,  1  Ves.  76  ;  Murless  v. 
Franklin,  1  Swanst.  20 ;  Willard  v.  Willard,  56  Penn.  St.  119. 

122.     By  the  weight  of  authority  a    veyance.       Adams    r.    Collier,    122 
voluntary  conveyance  made  without    U.  S.  382,  391 ;  Metropolitan  Nat. 
fraud  by  a  husband  to  his  wife  can     Bank  r.  Rogers,  47  F.  R.  148,  151  ; 
be  avoided  only  by  creditors   who    Pierce  u.  Hower,  142  Ind.  626. 
were  such  at  the  date  of  the  con- 

201 


§  149.]  RESULTING  TRUSTS.  [CHAP.   V. 

mere  declarations,  if  they  are  conflicting,  vague,  or  inconsist- 
ent with  themselves.* 

§  148.  If  a  father  pays  the  purchase-money,  and  the  wife 
or  child,  by  fraud,  or  any  wrongful  act,  and  against  the  inten- 
tion of  the  real  purchaser,  obtains  the  conveyance  in  her  or 
its  name,  the  presumption  of  an  advancement  would  be  re- 
butted, and  the  presumption  of  a  trust  would  arise  for  the 
father.2  So  if  a  son  pay  the  purchase-money  and  the  deed  is 
made  to  his  father  by  mistake,  a  trust  results  to  the  son.^ 

§  149.  If  a  purchaser  and  payer  of  the  money  take  the  con- 
veyance in  the  name  of  a  wife  or  child,  for  the  purpose  of 
delaying,  hindering,  or  defrauding  his  creditors,  the  convey- 
ance is  void,  or  a  trust  results  which  creditors  can  enforce  to 
the  extent  of  their  debts.*  It  makes  no  difference  by  the 
better  opinion  that  the  intent  was  not  fraudulent.  A  man 
must  be  just  before  he  is  generous ;  and  if  the  property  given 
to  the  wife  was  bought  with  funds  that  ought  to  have  gone  to 
pay  creditors,  the  property  is  liable  to  them.^  A  parallel  de- 
cision was  reached  where  a  wife  bought  land  with  her  own 
money,  had  it  deeded  to  her  husband,  and  the  latter  contracted 
debts  on  the  faith  of  being  the  owner  of  the  land.^     If  the  par- 

^  Grey  v.  Grey,  2  Swanst.  597  ;  Scawen  v.  Scawen,  1  N.  C.  C.  65 ; 
Cartwright  v.  Wise,  14  111.  417;  Cairns  v.  Colburn,  104  Mass.  247. 

2  Peer  v.  Peer,  3  Stockt.  432  ;  Hail  v.  Doran,  13  Iowa,  368 ;  Perkins 
V.  Nichols,  11  Allen,  542 ;  Persons  v.  Persons,  25  N.  J.  Eq.  250. 

8  Fairhurst  v.  Lewis,  23  Ark.  435. 

*  Christ's  Hospital  v.  Budgin,  2  Vern.  684;  Lush  v.  Wilkinson,  5  Ves. 
384 ;  Townshend  v.  Westacott,  2  Beav.  340  ;  Stileman  v.  Aslidown,  2  Atk. 
477  ;  Guthrie  v.  Gardner,  19  Wend.  414 ;  Jencks  v.  Alexander,  11  Paige, 
619;  Watson  v.  Le  Row,  6  Barb.  487  ;  Newell  r.  Morgan,  2  Harr.  225; 
Bell  v.  Hallenback,  AYright,  751 ;  Edgiugton  v.  Williams,  id.  439  ;  Parrish 
V.  Rhodes,  id.  339 ;  Creed  v.  Lancaster  Bank,  1  Ohio  St.  1  ;  Demaree  v. 
Driskill,  3  Blackf.  115  ;  Doyle  v.  Sleeper,  1  Dana,  531  ;  Rucker  v.  Abell, 
8  B.  Mon.  566  ;  Crozier  v.  Young,  3  Mon.  158  ;  Gowing  v.  Rich,  1  Ired. 
553 ;  Croft  v.  Arthur,  3  Des.  223  ;  Elliott  v.  Hart,  10  Ala.  348  ;  Abney  v. 
Kiugsland,  id.  355;  Cutter  v.  Griswold,  Walk.  Ch.  437;  Kimmel  v.  Mc- 
Right,  2  Barr,  38;  McCartney  v.  Bostwick,  32  N.  Y.  53;  Bartlett  v. 
Bartlett,  13  Neb.  460,  quoting  the  text. 

6  Bridgers  v.  Howell,  27  S.  C.  431.     «  Roy  v.  McPherson,  11  Neb.  197. 
202 


CHAP,   v.]  CONVEYANCE   OF  LEGAL   TITLE,   ETC.  [§  150. 

ent  or  husband  was  not  indebted  at  the  time,  subsequent  cred- 
itors could  not  defeat  the  title  nor  enforce  the  trust,'  unless 
the  settlement  or  conveyance  was  made  for  the  purpose  of  after- 
wards running  in  debt  and  defrauding  creditors.  In  some 
States,  as  in  Pennsylvania  and  Massachusetts,  an  execution 
against  the  debtor  can  be  levied  directly  upon  the  land  in  the 
hands  of  the  trustee ;  in  other  States  the  land  can  only  be 
reached  in  equity.  In  Minnesota,  a  purchase  by  a  husband  and 
a  deed  to  the  wife  creates  no  trust  as  to  him,  but  the  wife  holds 
in  trust  for  creditors  unless  fraudulent  intent  is  disproved.^ 

§  150.  A  very  common  case  of  a  resulting  trust  is  where 
the  owner  of  both  the  legal  and  equitable  estate  conveys  the 
legal  title  only,  without  conveying  the  equitable  interest.^ 
The  general  rule  in  such  case  is,  that  wherever  it  appears, 
upon  a  conveyance,  devise,  or  bequest,  that  it  was  intended 
that  the  grantee,  devisee,  or  legatee  should  take  the  legal 
estate  only,  the  equitable  interest,  or  so  much  of  it  as  is  left 
undisposed  of,  will  result,  if  arising  out  of  the  settlor's  realty, 
to  himself  or  his  heirs  ;  if  out  of  his  personal  estate,  to  him- 
self, his  executors,  or  administrators.*  Whether  the  convey- 
ance was  intended  to  convey  the  beneficial  as  well  as  the  legal 
estate  is  sometimes  a  matter  of  presumption  by  the  court  from 
all  the  circumstances  of  the  case,  and  sometimes  it  is  expressed 
upon  the  instrument  itself  in  such  manner  that  no  doubts 
can  arise.  When  it  is  matter  of  presumption,  parol  evidence 
may  be  received  to  rebut  or  sustain  the  presumption.^     But 

^  Creed  v.  Lancaster  Bank,  1  Ohio  St.  1 ;  Knouff  v.  Thompson,  16 
Penn.  St.  357;  Dillard  v.  Dillard,  3  Humph.  41 ;  Cutler  v.  Tuttle,  19  N. 
J.  Ch.  556. 

2  Leonard  v.  Green,  30  Miuu.  496. 

8  Morice  v.  Bishop  of  Durham,  10  Ves.  537  ;  Paice  r.  Canterbury,  14 
Ves.  370. 

*  Lewin  on  Trusts,  115  (5th  ed.  Lond.)  ;  Levet  v.  Needham,  2  Vern. 
138;  Wych  r.  Packington,  3  Bro.  Ch.  44;  Sewell  v.  Denny,  lOBeav.  315; 
Ilalford  V.  Stains,  16  Sim.  488  ;  Barrett  v.  Buck,  12  Jur.  771  ;  Cooke  v. 
Dealy,  22  Beav.  196  ;  Fletcher  v.  Ashburner,  1  Bro.  Ch.  501  ;  Re  Cross's 
Estate,  1  Sim.  (n.  s.)  260  ;  Hogau  v.  Staghorn,  65  N.  C.  279. 

^  Cook  V.  Hutchinson,  1  Keen,  50  ;  Docksey  i-.  Docksey,  2  Eq.  Cas. 
Ab.  500  ;  3  Bro.  P.  C.  39 ;  North  v.  Crompton,  1  Ch.  Cas.  196 ;  2  Vern.  253 ; 

203 


§  151.]  RESULTING   TRUSTS.  [CHAP.   V. 

where  the  trust  results  by  force  of  the  written  instrument,  it 
cannot  be  controlled,  rebutted,  or  defeated  by  parol  evidence 
of  any  kind.^ 

§  151.  No  general  rule  can  be  stated,  that  will  determine 
when  a  conveyance  will  carry  with  it  a  beneficial  interest, 
and  when  it  will  be  construed  to  create  a  trust;  but  the 
intention  is  to  be  gathered  in  each  case  from  the  general 
purpose  and  scope  of  the  instrument.  ^  A  conveyance  to  a 
wife  or  child  will  be  presumed  to  carry  a  beneficial  interest,^ 
but  such  consideration  is  only  a  circumstance  of  evidence.* 
It  has  been  said,  that  if  a  man  transfer  property  to  another, 
it  must  be  presumed  that  it  proceeded  from  an  intention  to 
benefit  the  other  by  making  the  gift  and  conferring  the 
beneficial  interest;^  but  if  such  intention  cannot  be  inferred 
consistently  with  all  the  circumstances  attending  the  trans- 
action, a  trust  will  result.^     The  heir  is  not  to  be  excluded 

Mallabar  v.  Mallabar,  Cas.  t.  Talb.  78 ;  Petit  v.  Smith,  1  P.  Wms.  7  ; 
Nourse  v.  Finch,  1  Ves.  Jr.  344  ;  Walton  v.  Walton,  14  Ves.  318  ;  Lang- 
ham  V.  Sanford,  17  Ves.  435;  Gladding  v.  Yapp,  5  Mod.  56;  Lake  v. 
Lake,  1  Wils.  313  ;  Amb.  126  ;  Trimmer  v.  Bayne,  7  Ves.  520 ;  Williams 
V.  Jones,  10  Ves.  77  ;  Barnes  v.  Taylor,  27  N.  J.  Eq.  265. 

1  Langham  v.  Sanford,  17  Ves.  435,  442;  19  Ves.  643;  Rachfield  v. 
Careless,  2  P.  Wms.  158  ;  Gladding  v.  Yapp,  5  Mod.  59  ;  White  v.  Evans, 
4  Ves.  21 ;  Walton  v.  Walton,  14  Ves.  322  ;  Petit  v.  Smith,  1  P.  Wms.  7  ; 
Nourse  v.  Finch,  1  Ves.  Jr.  344  ;  Ralston  v.  Telfair,  2  Dev.  Eq.  255 ; 
Hughes  V.  Evans,  13  Sim.  496 ;  White  v.  Williams,  3  V.  &  B.  72  ;  Love 
V.  Gaze,  8  Beav.  472. 

2  Hill  V.  Bishop  of  London,  1  Atk.  620 ;  Walton  v.  Walton,  14  Ves. 
322  ;  Starkey  v.  Brooks,  1  P.  Wms.  391 ;  King  v.  Dennison,  1  Ves.  &  B. 
279  ;  Ellis  v.  Selby,  1  M.  &  K.  298. 

3  Christ's  Hospital  r.  Budgin,  2  Vern.  683  ;  Jennings  v.  Selleck,  1 
Vern.  467 ;  Grey  v.  Grey,  2  Swanst.  598  ;  Elliot  v.  Elliot,  2  Ch.  Cas. 
232;  Hayes  v.  Kingdom,  1  Vern.  33;  Baylis  v.  Newton,  2  Vern.  28;  Cook 
V.  Hutchinson,  1  Keen,  42  ;  Cripps  v.  Jee,  4  Bro.  Ch.  472  ;  Rogers  v. 
Rogers,  3  P.  Wms.  193;  Lloyd  v.  Spillett,  2  Atk.  566;  Robinson  v.  Tay- 
lor, 2  Bro.  Ch.  594;  Smith  v.  King,  16  East,  283;  Coningham  v.  Mel- 
lish,  Pr.  Ch.  31. 

*  Huggins  V.  Yates,  9  Mod.  122  ;  Wych  v.  Packington,  2  Eq.  Cas.  Ab. 
507 ;  King  v.  Dennison,  1  Ves.  &  B.  474. 
^  George  v.  Howard,  7  Price,  651. 
®  Custance  v.  Cumiingham,  13  Beav.  363. 
204 


CHAP.    Y.]  CONVEYANCE    OF   LEGAL   TITLE,    ETC.  [§   151. 

from  a  resulting  trust  upon  bare  conjecture;*  there  must  be 
positive  evidence  of  a  benefit  intended  to  the  devisee,  and 
not  merely  negative  evidence  that  none  was  intended  for  the 
heir;  for  the  beneficial  interest  results  to  the  heir,  not  from 
the  intention  of  the  ancestor,  but  because  he  has  expressed 
no  intention. 2  Thus,  a  trust  may  result  upon  a  legacy  given 
to  the  heir; 2  but  the  circumstance  of  being  heir,  with  other 
circumstances,  will  be  strong  evidence  that  no  trust  was 
intended.*  But  in  no  case  will  the  court  permit  the  grantee 
to  retain  the  beneficial  interest,  if  there  was  any  mistake  on 
the  part  of  the  grantor,^  or  any  fraud  on  the  part  of  the 
grantee.^  If  the  grantor  intended  a  fraud  upon  the  law, 
there  can  be  no  resulting  trust  ;7  however,  even  in  this  case, 
if  the  grantee  admits  the  trust,  the  court  will  enforce  it.^  If 
a  conveyance  has  been  made  upon  a  valuable  consideration, 
there  can  be  no  resulting  trust  to  the  grantor,  as  the  i)ay- 
ment  of  a  valuable  consideration  imports  an  intention  to  ben- 
efit the  grantee  in  case  the  trusts  declared  fail,  or  are  imper- 
fectly declared,  or  do  not  take  effect  for  any  other  reason.^ 

1  Halliday  v.  Hudson,  3  Ves.  211  ;  KeUett  v.  Kellett,  3  Dow,  243  ; 
Amphlett  v.  Parke,  2  R.  &  M.  227;  Phillips  v.  Phillips,  1  M.  &  K.  CGI  ; 
Salter  v.  Cavanagh,  1  Dru.  &  Walsh,  6()8. 

*  Hopkins  v.  Hopkins,  Cas.  t.  Talb.  44 ;  Tregonwell  v.  Sydenham,  3 
Dow,  211;  Lloyd  v.  Spillett,  2  Atk.  151  ;  Habergham  v.  Vincent,  2  Ves. 
Jr.  22.5. 

«  Randall  v.  Bookey,  2  Vern.  425;  Pr.  Ch.  162;  Starkey  r.  Brooks,  1 
P.  Wms.  390,  overruling  North  v.  Crompton,  1  Ch.  Cas.  190  ;  Killett  r. 
Killett,  1  Ball  &  B.  543:  3  Dow,  P.  C.  248. 

*  Rogers  r.  Rogers,  5  P.  Wms.  193;  Sel.  Ch.  Ca.  81 ;  INIallabar  v.  Mal- 
labar,  Cas.  t.  Talb.  78;  and  other  cases  above  cited. 

^  Birch  V.  Blagrave,  Arab.  264;  Woodman  v.  jNIorrell,  2  Freem.  33  ; 
Childers  v.  Chiklers,  1  De  G.  &  Jon.  482 ;  Att.  Gen.  v.  Pouldeu,  8  Sim. 
472. 

6  Lloyd  V.  Spillett,  2  Atk.  150 ;  Barn.  388 ;  Hutchins  v.  Lee,  1  Atk. 
488 ;  Young  v.  Peachy,  2  Atk.  254-257  ;  2  Vera.  307 ;  Tipton  r.  Powell, 
2  Cold.  119. 

'  Cottington  v.  Fletcher,  2  Atk.  156  ;  Chaplin  v.  Chaplin,  3  P.  Wms. 
233  ;  Muckleston  v.  Brown,  6  Ves.  08. 

8  Ibid. 

'  Kerlin  v.  Campbell,  15  Penn.  St.  500 ;  Gibson  v.  Armstrong,  7  B. 
Mon.  481 ;  Brown  v.  Jones,  1  Atk.  158  ;  Ridout  r.  Dowding,  1  Atk.  419. 

205 


§  152.]  RESULTING   TRUSTS.  [CHAP.    V. 

§  152.  Thus,  if  upon  a  conveyance,  devise,  or  bequest,  a 
trust  is  declared  of  a  part  of  the  estate  only,  or  the  purposes 
of  the  trust  do  not  exhaust  the  whole  beneficial  interest,  the 
trust  in  the  remaining  part  or  interest  will  result  to  the 
settlor  or  his  heirs  ;^  for  the  reason  that  a  declaration  of 
trust  as  to  part  is  considered  sufficient  evidence  that  the 
settlor  did  not  intend  the  donee  to  take  the  beneficial  interest 
in  the  whole,  and  that  the  creation  of  the  trust  was  the  sole 
object  of  the  transaction.  But  a  distinction  must  be  observed 
between  a  devise  to  a  person  for  a  particular  purpose,  with 
no  intention  of  conferring  upon  him  any  beneficial  interest, 
and  a  devise  with  a  view  of  conferring  the  beneficial  interest, 
but  subject  to  a  particular  charge,  wish,  or  desire.  Thus,  if 
a  gift  be  made  to  one  and  his  heirs,  charged  with  the  pay- 
ment of  debts,  it  is  a  gift  for  a  particular  purpose,  but  not 
for  that  purpose  only ;  and  if  it  is  the  intention  to  confer 
upon  the  donee  of  the  legal  estate  a  beneficial  interest  after 
the  particular  purpose  is  satisfied  without  exhausting  the 
whole  estate,  the  surplus  goes  to  the  donee  and  does  not 
result.  2  But  if  the  gift  is  upon  a  trust  to  pay  debts,  that  is  a 
gift  for  a  particular  purpose  and  nothing  more.  If  the 
whole  estate  is  given  for  that  one  purpose,  and  that  purpose 
does  not  exhaust  the  whole  estate,  the  remainder  results  to 

1  Northen  v.  Carnegie,  4  Drew.  587;  Lloyd  v.  Spillett,  2  Atk.  150; 
Barn.  388 ;  Cottington  v.  Fletcher,  id.  155  ;  Culpepper  v.  Aston,  2  Ch. 
Cas.  115;  Cook  v.  Gwavas,  cited  Roper  i\  Kadcliffe,  9  Mod.  187  ;  Sher- 
rard  v.  Harborough,  Amb.  165  ;  Hobart  v.  Suffolk,  2  Vern.  644 ;  Bristol 
V.  Huugerford,  id.  645  ;  Halliday  v.  Hudson,  3  Ves.  210  a  ;  Killett  v.  Kil- 
lett,  3  Dowl.  P.  C.  248  ;  Davidson  v.  Foley,  2  Bro.  Ch.  203 ;  Levet  v. 
Needham,  2  Vern.  138  ;  Kiricke  v.  Bransbey,  2  Eq.  Cas.  Ab.  508  ;  Rob- 
inson V.  Taylor,  2  Bro.  Ch.  589 ;  Mapp  v.  Elcock,  2  Phill.  793  ;  3  H.  L. 
Cas.  492;  Read  v.  Stedman,  26  Beav.  495;  Dawson  v.  Clarke,  18  Ves. 
254  ;  Wych  v.  Packington,  3  Bro.  Ch.  44 ;  Hill  v.  Cook,  1  V.  &  B. 
173  ;  Mullen  v.  Bowman,  1  Coll.  N.  C.  197;  Loring  i'.  Elliott,  16  Gray, 
568. 

2  Hill  V.  London,  1  Atk.  619 ;  King  v.  Dennison,  1  V.  &  B.  260  ; 
Southouse  V.  Bate,  2  V.  &  B.  396  ;  Mullen  v.  Bowman,  1  Coll.  C.  C.  197; 
Dawson  v.  Clarke,  18  Ves.  247  ;  Walton  v.  Walton,  14  Ves.  318  ;  Wood  i'. 
Cox,  1  Keen,  317  ;  2  M.  &  Cr.  684  ;  Downer  r.  Church,  44  N.  Y.  647  j 
Clarke  v.  Hilton,  L.  R.  2  Eq.  810 ;  Irvine  v.  Sullivan,  L.  R.  8  Eq.  673. 

206 


CHAP,  v.]       TRUSTS  DECLARED  AS  TO  TART.        [§  153. 

the  donor  or  his  licirs. '  Or,  as  Vice-Cliancellor  Wood  stated 
the  rule :  (1)  where  there  is  a  gilt  to  one  to  enable  him  to  do 
something,  where  he  has  a  choice  whether  he  will  do  it  or 
not,  then  the  gift  is  for  his  own  benefit,  the  motive  why  it 
is  given  to  him  being  stated;  (2)  where  you  find  the  gift  is 
for  the  general  purposes  of  the  will,  then  the  person  who 
takes  the  estate  cannot  take  the  surplus  after  satisfying  a 
trust  for  his  own  benefit;  (3)  where  a  charge  is  created  Ijy 
the  will,  the  devisee  takes  the  surplus  for  his  own  benefit, 
and  no  trust  is  implied.  ^ 

§  153.  If  from  the  whole  instrument  there  can  l)e  gathered 
an  intention  to  benefit  the  donee,  no  trust  in  the  remainder 
will  result,  as  where  a  man  made  Ms  dearly  beloved  wife  his 
sole  heiress  and  executrix  to  pay  his  debts  and  legacies,  and 
there  was  a  residue  after  paying  debts  and  legacies,  there 
was  no  resulting  trust,  for  the  expressions  in  the  Avill  indi- 
cated an  intention  to  benefit  the  donee. ^  So  any  other 
expressions  that  indicate  an  intention  that  the  donee  shall 
be  benefited  after  the  particular  purposes  are  satisfied,  will 
prevent  a  trust  from  resulting.^     So  expressions  of  affection 

1  King  V.  Dennison,  1  V.  &  B.  272;  McElroy  v.  :\rcElroy,  113  Mass.  509. 

2  Barrst;.  Fewke,  2  Ilem.  &  M.  60;  11  Jur.  (x.  s.)  069 ;  Sanderson's 
Trust,  3  K.  &  J.  407  ;  Saltmarsh  v.  Barrett,  29  Beav.  474  ;  3  De  G.,  F.  & 
J.  279 ;  Pollard's  Trusts,  32  L.  J.  Ch.  6.j7  ;  Henderson  v.  Cross,  17  Jur. 
(n.  s.)  177;  Hale  v.  Home,  21  Grat.  112.  In  Cooke  v.  Stationers'  Co.,  3 
My.  &  K.  262,  Sir  John  Leach  said  :  "  If  the  devise  to  a  particular,  or  for 
a  particular  purpose,  be  intended  by  the  testator  to  be  an  exception  from 
the  gift  to  the  residuary  devisee,  the  heir  takes  the  benefit  of  the  failure; 
but  if  it  be  intended  to  be  a  charge  only  upon  the  estate  devised,  and  not 
an  exception  from  the  gift,  the  devisee  will  be  entitled  to  the  benefit  of 
the  failure."  Thus  if  lands  be  devised  to  A.  charged  with  a  legacy  to  B. 
if  he  attain  the  age  of  twenty-one,  the  devise  will  become  absolute  in  A. 
if  B.  dies  before  he  becomes  twenty-one.  And  the  will  is  to  read  as  if  B. 
was  not  named  in  it.  Tregonwell  v.  Sydenham,  3  Dow,  210  ;  Sprigg  v. 
Sprigg,  2  Vern.  394  ;  Cruse  p.  Barley,  3  P.  Wms.  20 ;  Att  Gen.  v. 
Milner,  3  Atk.  112  ;  Croft  v.  Slee,  4  Ves.  60;  Sutcliffe  v.  Cole,  3  Drew. 
185  ;  Jackson  r.  Ilurlack,  2  Eden,  203;  Tucker  v.  Kayess,  4  K.  &  J.  339. 

*  Rogers  v.  Rogers,  3  P.  Wms.  193  ;  Cook  v.  Hutchinson,  1  Keen,  42 

*  Meredith  v.  Heueage,  1  Sim.  555;  Wood  v.  Cox,  2  M.  &  Cr.  692  j 
Cook  V.  Hutchinson,  1  Keen,  42. 

207 


§  155.]  RESULTING   TRUSTS.  [cHAP.   Y. 

or  relationship  will  be  evidence  upon  the  question  whether  a 
trust  was  intended  to  result  after  the  particular  trusts  are 
satisfied.^  If  the  donee  is  an  infant  incapable  of  executing 
a  trust,  or  a  married  woman,  it  will  be  evidence  upon  the 
same  question. ^  But  if  from  the  whole  will  it  is  apparent 
that  the  donee  shall  not  take  a  beneficial  interest,  all  such 
circumstances  go  for  nothing.^ 

§  154.  If  the  donee,  to  whom  an  estate  is  given  upon  a 
trust  declared  as  to  part,  is  also  the  heir,  or  other  person 
to  whom  the  trust  for  the  remainder  would  result,  or  if  he 
is  one  of  a  class,  such  gift  to  him  will  not  prevent  him  from 
taking  by  the  resulting  trust  the  part  that  may  come  to 
him.*  So  a  legacy  or  other  beneficial  gift  to  him  will  not 
exclude  him  from  the  resulting  interest,^  even  if  the  interest 
given  him  is  to  arise  out  of  the  declared  trust.  ^ 

§  155.  The  doctrine  of  resulting  trusts,  where  a  trust  is 
declared  as  to  part  only,  was  formerly  much  discussed  in 
cases  of  gifts  to  executors  for  the  payment  of  debts  and 
legacies.  In  such  cases  at  common  law  the  appointment  of 
the  executor  entitled  him,  both  at  law  and  equity,  to  all  the 
remainder  of  the  personal  property  after  the  payment  of 
debts  and  legacies,  unless  it  was  specially  disposed  of  by  the 
testator  in  the  will.  Courts  were  always  astute  to  find  cir- 
cumstances to  repel  the  beneficial  interest  in  the  executor, 
and  to  raise  a  resulting  trust  for  the  next  of  kin,  or  heir-at- 
law;  and  it  was  finally  enacted,  1  Will.  TV.,  c.  40,  that 
such  executors  should  be  trustees  of  any  residue,  unless  it 

1  Rogers  v.  Rogers,  3  P.  Wms.  193 ;  Coningham  v.  Mellish,  Pr.  Ch. 
31;  King  v.  Dennisoii,  1  V.  &  B.  274;    Hobart  v.  Suffolk,  2  Vern.  CAi. 

2  Williams  i:  Jones,  10  Ves.  77  ;  Blinkhorn  v.  Feast,  2  Ves.  Sr.  27. 
8  King  V.  Mitchell,  8  Pet.  349;  King  v.  Denuison,  1  V.  &  B.  275. 

*  Hennershotz's  Estate,  16  Pa.  St.  435. 

8  Fan-ington  v.  Knightly,  1  P.  Wms.  545  ;  Rutland  v.  Rutland,  2  P. 
Wms.  213  ;  Andrews  v.  Clark,  2  Ves.  Sr.  162;  North  v.  Pardon,  2  Ves. 
Sr.  495. 

6  Starkey  v.  Brooks,  1  P.  Wms.  390;  Randal  v.  Bookey,  2  Vern.  425; 
Pr.  Ch.  162;  Killett  v.  Killett,  1  B.  &  B.  543  ;  3  Dowl.  P.  C.  248. 
208 


CHAP,    v.]    WHERE   TRUST    FAILS    OR    IS    NOT   DECLARED.       [§  157. 

plainly  appeared  by  the  will  that  they  were  intended  to  take 
the  residne  beneficially."  In  the  United  States  the  rule 
never  prevailed,  but  executors  always  took  as  trustees  for 
those  entitled  to  the  distribution  of  the  personal  estate, 
unless  it  was  expressly  disjjosed  of  to  some  other  persons,  or 
unless  it  was  cx])ressly  given  to  the  executor  beneficially.''^ 

§  156.  In  this  connection  an  important  exception  to  the 
general  doctrine  of  resulting  trusts  should  be  stated.  If 
property  is  given  to  trustees  by  grant  or  devise  for  charitable 
uses  (jnn'ralhi^  and  the  ]»articular  purpose  is  not  declared  at 
all,  or,  if  declared,  does  not  exhaust  the  whole  estate,  there 
will  be  no  resulting  trust  for  the  donor,  his  heirs,  or  next  of 
kin,  in  either  case;  nor  will  the  donees  take  any  beneficial 
interest,  but  the  court  will  direct  the  trustees  to  administer 
the  whole  estate  under  some  scheme  for  charitable  purposes.^ 

§  157.  If  a  gift  is  made  by  deed  or  will  upon  trunt^  and  no 
trust  is  declared,^  or  a  bequest  is  made  to  one  named,  as 
executor,  "to  enable  him  to  carry  into  effect  the  trusts  of 
the  will,"  and  none  are  declared,^  or  a  gift  is  made  upon 

1  See  2  Story,  Eq.  Jur.  §  1208,  and  the  elaborate  note  cited  from  Fon. 
Eq.  B.  2,  c.  5,  §  3,  note  (k). 

2  Hill  on  Trustees,  1234  (Am.  erl.)  ;  2  Story,  Eq.  Jur.  §§  1208,  1209; 
as  the  doctrine  has  never  prevailed  in  America,  it  is  not  worth  while  to 
state  all  the  learning  and  nice  distinctions  of  the  courts.  They  will  be 
found  in  Ilill,  Story,  and  Fonblanque  as  above  cited. 

8  Cook  V.  Dunkenfield,  2  Atk.  5G7;  Metford  School,  8  Co.  130;  IMog- 
gridge  v.  Thackwell,  7  Ves.  73;  Att.  Gen.  v.  Bristol,  2  J.  &  W.  308; 
^Mills  I'.  Farmer,  1  Mer.  55  ;  Att.  Gen.  v.  Haberdashers'  Co.,  4  Bro.  Ch. 
103 ;  see  pout,  chapter  upon  Charitable  Trusts,  where  this  matter  is  stated 
at  large. 

*  Att.  Gen,  v.  Windsor,  8  H.  L.  Ca.  309 ;   21  Beav.  679  ;    Gloucester 
V.  Wood,  1  H.  L.  Cas.  272 ;  3  Hare,  131 ;   Dawson  v.  Clark,  18  Ves.  254 
Dunnage  v.   White,   1  J.   &  W.  583  ;   Morice  v.  Durham,  10  Ves.  537 
Woollett  V.  Harris,  5  ]\Iadd.  452;    Southouse  v.  Bate.  2  Ves.  &  B.  396 
Goodere  v.  Lloyd,  3  Sim.  538;    Pratt  v.  Sladden,  14  Ves.  198;    Anon.,  1 
Com.  345;    Pen  fold  v.  Bouch,  4  Hare,  271  ;    Brown  v.  Jones,  1  Atk.  101  ; 
Sidney  v.  Shelley,  19  Ves.  359  ;  Emblyn  r.  Freeman,  Pr.  Ch.  542  ;   Coard 
V.  Ilolderness,  20  Beav.  147  ;  Longley  v.  Longley,  L.  K.  13  Eq.  137. 

6  Barrs  r.  Fewke,  2  Hem.  &  M.  GO. 
VOL.  I.— 14  209 


§  158.]  RESULTING    TRUSTS.  [CHAP.    V. 

trusts  thereafter  to  be  declared,  and  no  declaration  is  ever 
made,^  the  legal  title  only  will  pass  to  the  grantee  or  devisee, 
while  a  trust  in  the  equitable  interest  will  result  to  the 
settlor,  his  heirs,  or  legal  representatives,  according  to  the 
nature  of  the  property,  whether  real  or  personal ;  for  it 
appears  upon  the  instrument  itself  that  the  legal  title  alone 
was  intended  for  the  first  taker,  and  that  the  equitable 
interest  was  intended  to  go  to  some  other  person,  and  as 
such  other  person  cannot  take  the  equitable  interest  for 
want  of  a  declaration  of  the  trust,  it  results  to  the  settlor  or 
his  heirs. 2  So  if  a  testator  says  that  he  gives  the  residue, 
and  stops  there,  ^  or  if  he  cancels  a  residuary  bequest  by 
drawing  a  line  through  it.^  But  if  it  should  plainly  appear 
from  the  whole  instrument  that  the  donee  is  to  take  bene- 
ficially in  case  the  trusts  are  not  declared,  no  trust  will 
result  to  the  owner  or  heir.^ 

§  158.  It  is  to  be  observed,  however,  that  the  intention  of 
the  instrument  is  to  be  gathered  from  its  general  scope; 
hence,  although  the  words  upon  trust  are  very  strong  evi- 
dence of  the  donor's  intention  not  to  confer  the  beneficial 
interest  upon  the  donee,  ^  yet  it  may  be  negatived  by  the  con- 
text, and  the  general  interpretation  of  the  whole  paper ;  ^  so, 

1  London  v.  Garway,  2  Vern.  571  ;  Collins  v.  Wakeman,  2  Ves.  Jr. 
683 ;  Emblyn  v.  Freeman,  Pr.  Ch.  541  ;  Fitch  v.  Weber,  6  Hare,  145 ; 
Brookman  v.  Hales,  2  V.  &  B.  45;  Brown  v.  Jones,  1  Atk.  188;  Sidney 
V.  Shelley,  19  Ves.  352  ;  Taylor  v.  Haygarth,  14  Sim.  8 ;  Flint  v.  Warren, 
16  Sim.  124  ;  Onslow  v.  Wallis,  1  H.  &  Tw.  513  ;  1  McX.  &  G.  506  ;  Jones 
r.  Goodchild,  3  P.  Wms.  33  ;  Sturtevant  v.  Jaques,  14  Allen,  526 ;  Shaw 
V.  Spencer,  100  Mass.  388. 

2  Aston  V.  Wood,  L.  R.  6  Eq.  419 ;  Jones  v.  Bradley,  L.  R.  3  Eq.  635. 

3  Cloyne  v.  Young,  2  Ves.  Sr.  91 ;  Langham  v.  Sandford,  17  Ves.  435  ; 
Mapp  D.Elcock,  2  Phill.  793. 

*  Mence  v.  Mence,  18  Ves.  348;  Skrymsher  v.  Northcote,  1  Swanst. 
566. 

s  Sidney  v.  Shelley,  19  Ves.  352.  Whether  a  trust  results  to  a  debtor 
in  an  unclaimed  dividend.     Dillaye  v.  Greenough,  45  N.  Y.  438. 

6  Hill  V.  London,  1  Atk.  618;  WooUett  v.  Harris,  5  Md.  452;  Sturte- 
vant V.  Jaques,  14  Allen,  526 ;  Shaw  v.  Spencer,  100  Mass.  526. 

'  Coningham  v.  Mellish,  Pr.  Ch.  31 ;  Dawson  v.  Clark,  15  Ves.  409; 
210 


CHAP,   v.]      WHERE    TRUST   FAILS   OR   IS   NOT   DECLARED.    [§  158. 

if  the  donee  is  called  a  trustee,  the  term  may  be  shown  to 
apply  to  one  of  two  funds,  and  the  donee  may  take  a  bene- 
ficial interest  in  the  other, ^  or  it  may  be  so  used  as  to  )je  a 
mere  deseriptio  personce,  and  although  no  beneficiary  is 
named,  a  trust  does  nut  necessarily  result  to  the  grantor,'-^ 
On  the  other  hand  it  may  appear,  from  the  whole  instru- 
ment, that  the  donee  is  not  to  take  the  beneficial  interest, 
although  the  words  upon  trust,  or  trustee,  are  not  used ;  as 
where  there  is  a  direction  that  the  donee  shall  be  allowed 
his  costs  and  expenses  out  of  the  fund  given  him,  which 
would  be  without  meaning  if  he  took  the  whole  beneficial 
interest  in  the  fund.^  But  if  the  conveyance  is  by  deed  for 
a  valuable  consideration,  the  grantee  will  take  the  beneficial 
interest  if  the  trusts  fail  to  be  declared,  or  fail  in  any  way ; 
for  there  can  be  no  resulting  trusts  where  the  grantee  pays  a 
valuable  consideration  for  the  estate.'*  (a)  Where  a  will 
contained  in  substance  this  clause,  "  I  give  to  my  executor, 
P.,  $800  to  have  and  to  hold  the  same  to  the  use  of  S.  as 
follows :  I  desire  in  case  S.  should  at  any  time  need  assist- 
ance or  come  to  want,  that  my  executor  should  expend  such 
part  of  said  $800  as  will  make  her  comfortable  and  keep  her 
so  during  her  life.  The  remainder,  if  any,  of  said  $800,  at 
the  decease  of  S.  I  give  to  the  said  P.  and  his  heirs,"  it  was 

18  Ves.   247;  Hughes  v.    Evans,  13   Sim.   406;  Cook  v.  Hutchinson,! 
Keen,  42 ;  Dillaye  v.  Greenough,  45  N.  Y.  438. 

1  Gibbs  V.  Rumsey,  2  V.  &  B.  294;  Pratt  v.  Sladden,  14  Ves.  193; 
Battely  v.  Windle,  2  Bro.  Ch.  31  ;  Bingham  v.  Stewart,  13  Minn.  106  ; 
Pratt  c.  Beaupre,  13  Minn.  187;  Dillaye  v.  Greenough,  45  N.  Y.  438, 

2  DiUaye  v.  Greenough,  45  N.  Y.  438. 

8  Saltmarsh  v.  Barrett,  3  De  G.,  F.  &  J.  279 ;  29  Beav.  474. 
*  Brown  v.  Jones,  1  Atk.  158;  Ridout  v.  Dowding,  id.  419;  Kerlin  v. 
Campbell,  15  Penn.  St.  500. 

(a)   A  trust  fails,  when  there  was  mode.     Teele  v.  Bishop  of  Derry, 

no  intention   to  create  one,  which  168  Mass.   341.     So  when    a  deed 

can  be  carried  out ;  and  even  char-  shows  no  intention   outside  of  the 

itable  trusts  fail  when  they  cannot  mode    and    form    adopted  by  the 

be  carried  out  in  the  mode  intended,  deed,  it  fails,  if  the  deed  itself  was 

if  there  was  no  intention  that  they  never  delivered.    Loring  r.  Ilildreth, 

should  be  carried  out  in  any  other  170  Mass.  328,  331. 

211 


§  159.]  KESULTING   TRUSTS.  [CHAP.   V. 

held  that  P.  held  the  money  to  the  use  of  S.  during  her  life, 
and  whether  she  was  in  need  or  no  must  pay  the  income  to 
her,  and  if  in  need  must  expend  for  her  such  part  of  the 
principal  as  might  be  requisite  to  make  her  comfortable.  ^ 

§  159.  If  a  trust  for  a  specific  purpose  fails  by  the  failure 
of  the  purpose,  the  property  reverts  to  the  donor  or  his 
heirs. ^  (a)  If  the  gift  is  made  upon  a  trust,  and  the  trust  is 
insufficiently  or  ineffectually  declared,  as,  if  it  is  too  indefi- 
nite, vague,  and  uncertain  to  be  carried  into  effect,  it  will 
result  to  the  settlor,  his  heirs,  or  representatives.^  Whether 
a  trust  is  insufficiently  declared  or  not,  depends  of  course 
upon  the  particular  construction  to  be  given  to  each  indi- 
vidual deed  or  will ;  *  and  so,  whether  a  trust  is  too  vague  to 
be  executed  or  not,  depends  upon  the  interpretation  given  to 
each  instrument.^  If  the  declaration  of  trust  is  too  imper- 
fect to  establish  that  purpose,  and  yet  plainly  shows  that  the 
intention  was  that  the  donee  should  not  take  beneficially, 
and  that  the  sole  purpose  of  the  gift  or  grant  was  to  carry 
out  the  purpose  of  the  trust,  which  fails,  the  donee  will  take 
in  trust  for  the  donor  or  his  heirs;  but  if  it  appear,  from  the 
whole  instrument,  that  some  beneficial  interest  was  intended 
for  the  donee,  or  that  he  was  intended  to  take  beneficially  in 
case  the  particular  purpose  fails,  no  trust  will  result,  but  he 
will  take  the  estate  discharged  of  all  burdens.^ 

^  Coburn  v.  Anderson,  131  ]\Iass.  513. 

2  Gumbert's  App.,  110    Penn.  St.  496. 

s  Williams  v.  Kershaw,  5  CI.  &  Fin.  Ill ;  Ellis  v.  Selby,  7  Sim.  352; 
1  M.  &  C.  286  ;  Fowler  v.  Garlike,  1  R.  &  M.  232;  Morice  v.  Durham, 
9  Ves.  399 ;  10  Ves.  522 ;  Kendall  v.  Granger,  5  Beav.  300 ;  Vesey  v. 
Jamson,  1  S.  &  S.  69 ;  Stubbs  v.  Sargon,  3  M.  &  C.  500;  2  K.  255; 
Leslie  v.  Devonshire,  2  Bro.  Ch.  187  ;  James  v.  Allen,  3  Mer.  17;  Sturte- 
vant  V.  Jaques,  14  Allen,  526 ;  Shaw  v.  Spencer,  100  Mass.  388. 

*  Ellis  V.  Selby,  1  M.  &  K.  298. 

6  Ibid. 

®  Gibbs  V.  Rumsey,  2  Ves.  &  B.  294;  Cawood  r.  Thompson,  1  Sm.  & 
Gif .  409 ;  Lomax  v.  Ripley,  3  Sm.  &  Gif .  48 ;  Hughes  v.  Evans,  13  Sim. 
496;  Ralston  v.  Telfair,  2  Dev.  Eq.  255. 

(a)  Jenkins  v.  Jenkins  Uni.,  17  Wash.  160. 

212 


CHAP,   v.]  VOLUNTAIIY   CONVEYANCE.  [§  160. 

§  160.  Where  a  j^ift  is  made  upon  trusts  that  are  void,  in 
whole  or  in  part,  for  illegality,'  or  that  fail  by  lapse,  or 
otherwise,  during  the  life  of  the  donor,^  a  trust  will  result 
to  the  donor,  his  heirs,  or  legal  representatives,  if  the  prop- 
erty is  not  otherwise  disposed  of.  (a)  Thus,  where  the  gilt 
or  trust  is  void  by  statute,  as  a  disposition  in  favor  of 
persons  or  objects  prohibited  from  taking,^  or  given  at  a 
time  and  in  a  manner  forbidden,  as  in  violation  of  the 
statutes  of  mortmain,  or  similar  statutes,*  or  where  the  gift 
contravenes  some  policy  of  the  law,  as  tending  to  a  per- 
petuity,^ or  where  it  fails  by  the  death  of  the  beneficial 
donee  or  cestui  que  trust,^  a  trust,  to  the  extent  of  the  estate 
given,  will  result  to  the  donor,  or  his  heirs,  or  legal  repre- 
sentatives, if  it  is  not  otherwise  disposed  of.  If  the  pur- 
poses of  a  trust  fail  or  are  completely  performed,  the 
trustees  hold  the  estate  for  the  heirs  at  law  as  a  resulting 

1  Turner  v.  Russell,  10  Hare,  204 ;  Cook  r.  Stationers'  Co.,  3  :M.  &  K. 
262;  Carrick  v.  Errington,  2  P.  Wms.  361;  TregonwL'U  v.  Sydenham,  3 
Dow,  194;  Arnold  r.  Chapman,  7  Ves.  108;  Jones  r.  jNIitchell,  1  S.  &  S. 
290;  Page  v.  Leapingwell,  18  Ves.  463;  Pilkington  i\  Boughey,  12  Sim. 
114 ;  Gibbs  v.  Rumsey,  2  Ves.  &  B.  294;  Stevens  v.  Ely,  1  Dev.  Eq.  493; 
Dashiel  v.  Att.  Gen.,  6  Har.  &  J.  1  ;  Lemmond  v.  People,  6  Ired.  Eq.  137. 

-  Williams  v.  Coade,  10  Ves.  300;  Aokroyd  v.  Sinithson,  1  Bro.  Ch. 
.503;  Spink  v.  Lewis,  3  id.  33.3;  Hutcheson  v.  Hammond,  id.  12^; 
Muckleston  v.  Brown,  6  Ves.  63;  Davenport  v.  Coltman,  12  Sim.  610; 
Cruse  V.  Barley,  3  P.  Wms.  22  ;  Hawley  v.  James,  5  Paige,  318 ;  Gwynn 
V.  Gwynn,  27  S.  C.  526. 

8  Carrick  r.  Errington,  2  P.  Wms.  361  ;  Davers  r.  Dewes,  3  id.  43. 

*  Att.  Gen.  v.  Weymouth,  Amb.  20  ;  Jones  r.  Mitchell,  1  S.  &  S.  294; 
Westr.  Shuttleworth,  2  M.  &  K.  684;  Acts  39  &  40  Geo.  IV.  c.  98; 
Eyre  >\  IMarsden,  2  Keen,  564  ;  McDonald  v.  Bryce,  id.  276 ;  Lemmond 
V.  People,  6  Ired.  Eq.  137. 

^  Tregonwell  v.  Sydenham,  3  Dow,  194 ;  Leake  v.  Robinson,  2  Mer. 
363  ;  Marshall  r.  Holloway,  2  Swanst.  432  ;  Southampton  v.  Hertford,  2 
V.  &  B.  54;  Curtis  v.  Lukin,  5  Beav.  147 ;  Boughton  r.  James,  1  Call,  26; 
1  H.  L.  Cas.  406;  Brown  r.  Stoughton,  14  Sim.  369  ;  Scari-sbrick  v.  Skel- 
raersdale,  17  Sim.  187;  Furrin  r.  Newcomb,  3  K.  &  J.  16. 

8  Ackroyd  v.  Smithson,  1  Bro.  Ch.  503 ;  Cox  v.  Parker,  22  Beav,  188 ; 
Barker  v.  Reilly,  4  Del.  Ch.  72 ;  Bond  v.  Moore,  90  N.  C.  239. 

(a)  See  Rudy's  Estate,  185  Penn.  199,768;  Farrington  r.  Putnam,  90 
St.  359 ;  Edson  v.  Bartow,  154  N.  Y.    Maine,  405  ;  10  Harv.  L.  Rev.  445. 

21.3 


§  160  a."]  RESULTING    TRUSTS.  [CHAP.    V. 

trust. ^  So  if  a  trust  for  a  particular  purpose  fail,  by  the 
dissolution  of  a  corporation,  or  other  organized  body,  a  trust 
created  for  their  particular  benefit  will  result  to  the  donor's 
heirs.-  All  that  the  douor  has  not  given  out  of  himself 
remains  in  him,  and  if  he  has  not  provided  to  whom  the 
property  shall  belong  on  failure  or  determination  of  the 
trust,  that  right  is  still  his,  and  he  may  convey  the  property 
subject  to  the  trust. ^  In  all  cases,  if  the  trust  arises  or 
results  by  presumption  of  law,  it  may  be  rebutted  as  to 
instruments  inter  vivos  by  parol  evidence  that  it  was  the 
intention  of  the  settlor  that  the  donee  should  take  the  sur- 
plus beneficially,  or  the  whole  estate  if  the  trust  failed  in 
toto  ;^  but  where  the  trust  results,  not  by  presumption  of  law 
nor  from  the  facts  and  circumstances,  but  from  the  con- 
struction and  force  of  a  written  instrument,  no  parol  evi- 
dence can  be  introduced  to  control  such  construction  and 
force.  ° 

§  160  a.  In  England,  the  heir  and  the  next  of  kin  or  legal 
representatives' are  not  the  same  persons,  or  they  have  not 
the  same  rights  and  interests ;  consequently  questions  of 
some  difficulty  arise  as  to  whether  a  trust  in  property  results 
to  the  heir,  or  to  the  next  of  kin,  or  the  legal  representa- 
tives. The  general  rule  is,  if  the  property  is  real  estate, 
that  the  trust  results  to  the  heir;  if  personal  property,  to 
the  next  of  kin  under  the  statutes  of  distribution,  or  to  the 
legal  representatives.  But  su])pose  a  testator  has  devised 
real  estate  in  trust  and  directed  it  to  be  sold  and  the  pro- 
ceeds applied  to  purposes  named,  and  the  real  estate  is  con- 
verted into  money,  and  the  trust  fails  in  whole  or  in  part; 
or  suppose  money  is  given  in  trust,  and  there  is  a  direction 
to  invest  it  in  lands,  which  is  done,  and  the  trust  fails,  to 
whom  does  the  trust  result,  to  the  heir  as  real  estate,  or  to 

1  Packard  v.  IMarshall,  138  Mass.  383. 

2  Easterbrooks  v.  Tillinghast,  5  Gray,  17. 
8  Schlessinger  r.  Mallard,  70  Cal.  326. 

*  Ante,  §§  139,  140,  145,  147;  Cook  v.  Hutchinson,  1  Keen,  .50, 
^  Ante,  §  150;  Langham  v.  Sauford,  17  Yes.  442. 

214 


CHAP,  v.]  VOLUNTARY    CONVEYANCE.  [§  IGO  a. 

the  next  of  kin  as  personal  property  ?  Such  questions  are 
not  important  in  the  United  States,  for  the  reason  tiiat  in 
most  if  not  all  the  States  the  same  persons  take  both  the 
real  and  personal  estate  of  an  ancestor  in  the  same  jjropor- 
tion  and  with  the  same  rights,  and  it  is  comparatively  unim- 
portant whether  the  trust  results  as  real  or  personal 
property.'  There  is,  however,  one  question  still  important 
in  the  United  States,  and  that  is,  does  the  trust  result  to  the 
heirs-at-law,  or  to  the  residuary  devisees  or  legatees  ?  The 
donor,  settlor,  or  testator  still  retains  such  an  interest  in 
proj)erty  given  by  him  in  trust,  that  the  interest  which 
results  upon  the  failure  of  the  trusts  created  by  him  may  be 
devised  by  him,  and  the  question  in  each  case  is  whether 
the  resulting  interest  becomes  a  part  of  the  residue  and 
passes  to  the  residuary  legatee,  if  there  is  one,  or  whether 
it  passes  to  the  heirs.  The  question  may  be  stated  in 
another  form,  thus:  has  the  testator  died  intestate  as  to  the 
interests  which  result  to  him  upon  a  failure  of  the  trusts, 
or  do  the  provisions  of  the  will  embrace  such  interests  and 
convey  them  to  some  person  or  persons,  or  class  of  persons 
named  ?  The  distinction  between  the  heirs  and  the  residuary 
legatees  is  that  the  residuary  legatees  claim  under  the  will, 
and  the  heirs  claim  dehors  the  will.  All  the  cases  that  can 
arise  must  depend  upon  the  intention  of  the  donor  or 
settlors,  and  upon  the  construction  of  each  particular  will. 
If  the  subject-matter  of  the  bequest  that  fails  is  personal 
estate,  the  residuary  legatee  will  take  all  that  results;  for  a 
general  residuary  bequest  is  always  held  to  carry  every 
interest,  whether  undisposed  of  in  the  will,  or  undisposed  of 
in  any  event. ^     Therefore  it  is  only  where  the  will  contains 

1  See  all  the  English  cases  cited  and  the  nice  distinctions  drawn, 
Lewin  on  Trusts,  121-132  (5th  ed.)  ;  Ilillon  Trustees,  127-143. 

^  Dawson  ?'.  Clarke,  15  Ves.  417;  Brown  v.  Higgs,  4  Yes.  708;  S  Yes. 
570;  Shanley  v.  Baker,  4  Yes.  732;  Oke  r.  Heath,  1  Yes.  141  ;  Carnl)ridge 
V.  Rous.  8  Yes.  25;  Cooke  v.  Stationers'  Co.,  3  M.  &  K.  204;  Bland  v. 
Bland,  2  J.  &  W.  400;  Jones  r.  Mitchell,  1  S.  &  S.  298.  Sir  William 
Grant  said  that  it  must  be  a  very  peculiar  case  indeed  in  which  there 
can  be  at  once  a  residuary  clause  and  a  partial  intestacy  unless  some 
part  of  the  residue  be  ill  given.     Leake  v.  Robiusou,  2  Mer.  302 ;  King 

215 


§  161.]  RESULTING   TRUSTS.  [CHAP.   V. 

no  residuary  clause  that  the  next  of  kin  (or  heirs  in  the 
United  States)  can  assert  any  claim.  There  is,  however, 
this  obvious  remark  to  be  made :  that  if  the  residuum  is 
itself  given  upon  a  trust  that  fails,  it  of  course  results  to  the 
next  of  kin  or  heirs. ^  But  a  different  rule  is  applied  at 
common  law  to  gifts  of  real  estate.  If  real  estate  was 
bequeathed  upon  trusts  that  were  void,  or  that  failed,  the 
real  estate  did  not  pass  to  the  residuary  devisee,  but  resulted 
to  the  heir-at-law,  for  the  reason  that  nothing  passed  by  the 
gift  of  the  residue  except  what  was  intended  to  pass,  and  a 
bequest  of  real  estate  for  a  particular  purpose  indicated  a 
plain  intention  not  to  embrace  it  in  the  residuary  bequest, 
and  although  it  might  be  void  or  fail,  yet  it  was  so  far 
operative  as  to  indicate  the  intention  of  the  donor  not  to 
allow  it  to  pass  under  the  residuary  clause  of  the  will.  The 
common  law  was  altered  by  1  Vict.  Ch.  26,  and  real  estate 
is  governed  by  the  same  rule  as  personal  estate.  ^ 

§  161.  It  was  formerly  said  that  if  a  man  conveyed  his 
estate  to  a  stranger  without  consideration,  or  for  a  mere 
nominal  one,  a  trust  resulted  to  the  owner,  on  the  ground 
that  the  law  would  not  presume  a  man  to  part  with  his 
property  without  some   inducement  thereto. ^     This  was  in 

V.  Woodhull,  3  Edw.  Ch.  79 ;  Swinton  v.  Egleston,  3  Rich.  Eq.  201  ; 
Hamberlin  v.  Terry,  1  Sm.  &  M.  Ch.  589 ;  Johnson  v.  Johnson,  3  Ired. 
Eq.  427  ;  ]\Iarsh  v.  Wheeler,  2  Edw.  Ch.  156  ;  Com.  v.  Nase,  1  Ashra. 
242  ;  "Woolmer's  Est.,  3  Whart.  879  ;  Taylor  v.  Lucas,  4  Hawks,  215 ;  Pool 
V.  Harrison,  18  Ala.  515;  Vick  y.McDauiel,3  How.  (Miss.)  337;  Bryson 
r.  Nichols,  2  Hill,  Ch.  113. 

1  Skrymsher  v.  Northcote,  1  Swanst.  566  ;  McDonald  v.  Bryce,  2  Keen, 
276  ;  Eyre  v.  Marsden,  2  Keen,  564  ;  Woolmer's  Est.,  3  Whart.  477  ;  John- 
son V.  Clarkson,  3  Rich.  Eq.  305;  Salt  v.  Chattaway,  3  Beav.  576;  Floyd 
V.  Barker,  1  Paige,  480 ;  Frazier  v.  Frazier,  2  Leigh,  642 ;  Trippe  v. 
Frazier,  4  II.  &  J.  446. 

2  In  the  United  States  there  is  considerable  variety  in  the  decisions  of 
the  courts,  if  not  some  uncertainty  in  the  law,  where  it  is  not  determined 
by  statute.  See  a  very  learned  discussion  of  the  law  in  New  York  in 
Van  Kluck  v.  Dutch  Reformed  Church,  6  Paige,  600;  20  Wend.  458.  In 
Massachusetts,  Ilayden  v.  Stoughton,  5  Pick.  528 ;  Brigham  v.  Shattuck, 
10  Pick.  306;  Clapp  v.  Stoughton,  id.  463  ;  4  Kent  Cora.  541. 

«  Lewin  on  Trusts,  116  (5th  Loud,  ed.),  aud  cases  cited;   Tolar  v. 
216 


CHAP,  v.]  VOLUNTARY   CONVEYANCE.  [§  162. 

strict  analogy  to  the  common  law,  whereby,  if  a  feoffment  was 
made  without  consideration,  the  legal  title  only  passed  to 
the  feoffee,  and  a  use  resulted  to  the  feoffor.'  In  conform- 
ity with  this  rule,  Mr.  Cruise  lays  it  down,  that  if  the  legal 
estate  in  lands  is  conveyed  to  a  stranger  without  any  con- 
sideration, there  arises  a  resulting  trust  to  the  original 
owner; 2  for  where  there  is  neither  consideration,  nor  decla- 
ration of  use,  to  show  the  intention  of  the  parties,  it  cannot 
be  supposed  that  the  estate  was  intended  to  be  given  away.^ 
And  the  burden  was  put  upon  the  grantee  to  show  the  con- 
sideration, and  upon  failure  of  proof,  a  use  was  presumed  to 
the  grantor,  for  the  reason,  as  stated  by  Sir  Francis  Bacon, 
that  when  feoffments  were  made,  it  grew  doubtful  whether 
estates  were  in  use  or  purchase ;  and  as  purchases  were 
things  notorious,  and  uses  were  things  secret,  the  Chan- 
cellor thought  it  more  convenient  to  put  the  purchaser  to 
prove  his  consideration  than  the  feoffor  to  prove  his  trust, 
and  so  made  intendment  toward  the  use,  and  put  the  pur- 
chaser to  the  proof  of  his  purchase.*  To  the  same  effect  are 
Coke  on  Littleton  and  many  of  the  older,  and  some  of  the 
more  modern,  authorities.^ 

§  162.  But  the  rule  that  a  trust  resulted  to  the  grantor 
upon  a  voluntary  conveyance  was  confined  to  common-law 
conveyances  or  assurances,  such  as  feoffments,  grants,  fines, 
recoveries,  and  releases  which  operated  without  considera- 
tion, and  vested  the  estate  in  the  alienee  by  the  act  itself,  as 

Tolar,  1  Dev.  Eq.  456;  2  Story,  Eq.  Jur.  §  1199;  Cecil  v.  Butcher,  2  J.  & 
W.  573 ;   Souerbye  v.  Ardeii,  1  Johns.  Ch.  246. 

1  Dyer  v.  Dyer,  2  Cox,  92 ;  Pinney  v.  Fellows,  15  Vt.  538 ;  Botsford  v. 
Burr,  2  Johns.  Ch.  405. 

2  Cruise,  Dig.  tit.  12,  c.  1,  §  52;  tit.  11,  c.  4,  §  16. 
8  Cruise,  Dii;-.  tit.  11,  c.  4,  §  16  et  seq. 

*  Bacon  on  Uses,  317. 

6  1  Inst.  23  a,  271  a  ;  Dyer,  166  a,  186  h  ;  11  Mod.  182 ;  Cleve's  Case,  6 
Rep.  17  b  ;  Woodliffe  r.  Drury,  Cro.  Eliz.  439;  Duke  of  Norfolk  r.  Brown, 
Pr.  Ch.  80;  Warman  v.  Seaman,  2  Ereem.  308  ;  Hayes  v.  Kingdonic,  1 
Vern.  33;  Grey  v.  Grey,  2  Swanst.  598 ;  Elliot  v.  Elliot,  2  Ch.  Cas.  232  ; 
Att.  Gen.  v.  Wilson,  1  Cr.  &  Ph.  1 ;  Sculthorpe  v.  Burgess,  1  Yes.  Jr.  92; 
Tyrrell's  Case,  2  Freem.  304;  Ward  v.  Lant,  Pr.  Ch.  182. 

217 


§  162.] 


EESULTING  TRUSTS. 


[chap.  V. 


by  livery  of  seizin  ;  ^  although  it  was  always  doubtful  whether 
a  use  could  result  from  a  conveyance  by  lease  and  release, 
even  though  it  was  voluntary,  and  no  uses  were  declared; 
for  the  extinguishment  of  the  estate  of  the  lessee  was  a  good 
consideration,  yet  such  a  conveyance  was  a  strict  common- 
law  conveyance.^  This  rule  does  not  apply  to  modern  con- 
veyances, and  no  trust  is  now  held  to  result  to  a  grantor 
although  he  conveys   his  estate  without   consideration.  ^  (a) 

1  Cruise,  Dig.  tit.  11,  c.  4,  §  16. 

2  Cruise,  Dig.  tit.  32,  c.  11,  §  17. 

3  Hutchins  v.  Lee,  1  Atk.  447  ;  Lloyd  v.  Spillett,  2  Atk.150;  Young  v. 
Peachy,  id.  257 ;  Burn  v.  Winthrop,  1  Johns.  Ch.  329 ;  Graff  v.  Rohrer, 
35  Md.  327;  Hogan  v.  Jaques,  19  N.  J.  Eq.  123;  Bust  v.  Wilson,  28  Cal. 
632;  Jackson  v.  Cleveland,  15  Mich.  94;  Ownes  v.  Ownes,  23  N.  J.  Eq. 
60.  But  see  McKenney  v.  Burns,  31  Ga.  295,  and  Haigh  v.  Kaye,  L.  R. 
7  Ch.  469 ;  Blodgett  v.  Hildreth,  103  Mass.  486  ;  Stevenson  v.  Crapnell, 
114  111.  19. 


(a)  In  Re  Duke  of  Marlborough, 
[1894]  2  Ch.  133,  where  an  American 
wife  voluntarily  conveyed  her  house 
to  her  husband  to  enable  him  to 
mortgage  it  in  his  own  name,  the 
decision  in  Haigh  v.  Kaye  was  con- 
sidered as  of  higher  authority  than 
Leman  v.  Whitley,  which  was  also 
questioned  in  Sugden  on  Vendors 
(14th  ed.),  p.  702  ;  and  it  was  held 
that,  the  husband  having  died  with- 
out reconveying  to  her,  though  ap- 
parently not  unwilling  to  do  so,  the 
wife  was  entitled  to  a  reconveyance. 
In  Rochefoucauld  r.  Boustead,[1897] 
1  Ch.  196,  it  was  likewise  held  that 
the  statute  of  frauds  does  not  ex- 
clude evidence  of  a  fraud,  as  when 
a  person  to  whom  land  is  conveyed 
as  a  trustee,  and  who  knows  it  was 
so  conveyed,  denies  the  trust  and 
claims  the  land  as  his  own.  Hence 
one  who  claims  land  conveyed  to 
another  may  prove  by  parol  evidence 
that  it  was  so  conveyed  on  trust  for 
the  claimant,  and  may  obtain  a  de- 
218 


claration  that  the  grantee  is  a  trustee 
for  him  ;  that  such  a  trust  is  an  ex- 
press trust,  and  the  statute  of  lim- 
itations is  not  a  defence  to  the 
claim. 

In  Indiana,  even  where  there  is 
no  fraud  or  misrepresentation  up  to 
the  time  a  voluntary  conveyance  is 
made,  there  is  held  to  be  a  resulting 
trust  for  the  grantor,  when  good 
faith  so  requires.  Myers  v.  Jack- 
son, 135  Ind.  136  ;  Giffen  v.  Taylor, 
139  Ind.  573.  See  Nashville  Trust 
Co.  V.  Lannon  (Tenn.  Ch.)  3G  S. 
W.  977 ;  Bowler  v.  Curler,  21  Nev. 
158 :  Larmon  v.  Knight,  140  111. 
232.  In  California,  where  husband 
and  wife  may  contract  with  each 
other,  and  undue  influence  is  not 
presumed  when  one  conveys  prop- 
erty to  the  other,  want  of  considera- 
tion does  not  establish  a  resulting 
trust  in  the  case  of  a  voluntary  con- 
veyance by  one  of  them  to  the  other. 
Tillaux  V.  Tillaux,  115  Cal.  663. 
In  Massachusetts,  after  a  voluntary 


CHAP,  v.]         VOLUNTARY  CONVEYANCE.  [§  162. 

At  the  present  day  almost  all  conveyances  are  in  form  deeds 
of  bargain  and  sale,  and  operate  to  pass  the  estate  by  virtue 
of  the  statute  of  uses,  or  of  statutes  in  the  several  States 
prescribing  the  formalities  necessary  to  convey  lauds. 
Under  the  statute  of  uses,  the  bargain  between  the  bargainor 
and  the  bargainee,  and  the  consideration,  raised  a  use  in  the 
bargainee;  the  statute  immediately  stepped  in  and  vested 
the  legal  title  in  the  same  person  for  whom  a  beneficial  use 
had  been  raised  by  the  bargain.  In  conveyances  that  are  in 
form  deeds  of  bargain  and  sale,  parol  evidence  cannot  be 
received  to  control  or  contradict  the  statement  of  the  con- 
sideration. Such  a  statement  is  a  solemn  and  essential  part 
of  the  deed,  and  its  existence  cannot  be  disproved  by  parol,* 
although  it  is  allowed  so  far  to  control  the  statement  as  to 
the  payment  of  it,  as  to  show  that  it  still  exists  as  a  debt 
due  from  the  grantee  to  the  grantor. ^  (a)     And  so  in  States 

1  Leman  v.  Whitley,  4  Russ.  423  ;  Philbrook  r.  Delano,  29  Maine, 
410 ;  Graves  v.  Graves,  29  N.  H.  129  ;  Randall  v.  Phillips,  3  Mason,  388 
Hutchinson  i'.  Tindall,  2  Green,  Ch.  357;  Alison  v,  Kurtz,  2  Watts,  187 
Wilkinson  v.  Wilkinson,  2  Dev.  Eq.  376;  Morris  v.  Morris,  2  Bibb.  311 
Movan  v.  Hayes,  1  Johns.  Ch.  339  ;  Rathbun  v.  Rathbun,  G  Barb.  98 
Balbeck  v.  Donaldson,  6  Am.  Law.  Reg.  118;  Graff  v.  Rohrer,  35  Md.  327 

-  Leman  i'.  Whitley,  4  Russ.  423  ;  Graves  v.  Graves,  29  N.  H.  129 
Philbrook  v.  Delano,  21  Maine,  420;  Randall  v.  Phillips,  3  Mason,  388 
Thomas  v.  McCorniack,  9  Dana,  188 ;  Radsall  v.  Radsall,  9  Wis.  379 
Farrington  v.  Barr,  30  N.  H.  m. 

conveyance,  untainted  by  fraud,  un-  Goldsmith  v.  Goldsmith,  145  N.  Y. 

affected  by  any  written  declaration  313  ;  Lamb  v.  Lamb,  46  N.  Y.  S. 

of  trust,  and  without  consideration,  219  ;  Hutchinson  v.  Hutchinson,  84 

even  though  there  is  an  oral  agree-  Hun,  482  ;  see  Lovett  xk  Taylor,  54 

ment  that   the    grantee  holds  the  N.  J.  Eq.  311. 

land  in  trust,  the  grantor   cannot         (a)  The  consideration  expressed 

avoid  the  deed  for  fraud,  accident,  in  a  deed  is  open  to  parol  explana- 

or  mistake.     Fitzgerald  v.  Fitzger-  tiou  for  most  purposes,  but  a  want 

aid,  1(58  Mass.  488.     In  New  York,  of  consideration  cannot  be   shown 

a  voluntary  trust  is   declared  and  against  the  recital  of  the  deed  to 

enforced  only  when  a  confidential  establish  a   resulting  trust   in    the 

relation  is  alleged  to  have  been  taken  grantor.      Bobb   v.    Bobb,  89   ]\lo. 

advantage  of,   in   which   case    the  411;     Weiss     v.     Heitkamp,     127 

donee   is  required  to  show  clearly  Mo.  23. 
fair  dealing  and  absence  of  fraud. 

219 


§  162.]  KESULTING   TRUSTS.  [cHAP.    V. 

where  it  is  declared  by  statute,  as  in  Massachusetts,^  that 
deeds  duly  executed,  acknowledged,  and  recorded  shall  be 
effectual  to  pass  the  estate  without  other  ceremony,  it  is  not 
competent  to  control  the  effect  of  such  deeds  by  parol,  or  to 
engraft  uses,  trusts,  or  other  limitations  upon  them  not  con- 
tained in  the  instruments  themselves,  or  in  some  other 
instrument  executed  before  or  at  the  same  time  with  them, 
in  such  manner  as  to  become  a  part  of  them.^  To  allow 
parol  evidence  to  raise  a  resulting  trust  upon  such  deeds 
would  be  to  break  in  upon  the  express  provisions  of  the 
statute  of  frauds.  Mr,  Hill  states  the  modern  rule  correctly 
when  he  says,^  "that  it  is  the  clear  result  of  the  authorities 
that  where  a  person,  a  stranger  in  blood  to  the  donor,  and 
a  fortiori  if  connected  with  him  in  blood,  is  in  possession  of 
an  estate  under  a  voluntary  conveyance  duly  executed,  the 
mere  fact  of  his  being  a  volunteer  will  not  of  itself  create 
any  presumption  that  he  is  a  trustee  for  the  grantor;  but  he 
will  be  considered  entitled  to  the  enjoyment  of  the  beneficial 
interest  unless  that  title  is  displaced  by  sufficient  evidence 
of  an  intention  on  the  part  of  the  donor  to  create  a  trust, 
and  he  need  not  bring  proofs  to  keep  his  estate,  but  the 
plaintiff  must  bring  proofs  to  take  it  from  him."*  And 
where  the  deed  contains  a  clause,  as  most  deeds  do,  that  the 

1  Gen.  Stat.  c.  89,  §  1. 

3  Gerry  V.  Stimson,  60  Maine,  186;  Philbrook  v.  Delano,  29  id.  410 
Titcomb  v.   Morrill,    10  Allen,  15;  Bartlett  v.   Bartletfc,  14  Gray,  278 
Walker  u.    Locke,   5  Cush.   90;    Blodgett  v.   Hildreth,    103    Mass.    484 
Games  v.  Colburn,  104  Mass.  274  ;  Whitton  v.  Whitton,  3  Cush.  191 
Graves  v.  Graves,  29  N.  H.  129  ;  Rathbun  v.  Rathbun,  6  Barb.  105  ;  Bank 
of  U.  S.  V.  Housman,  6  Paige,  526 ;  Miller  v.   Wilson,  15   Ohio,   108 ; 
Parnell  v.  Kingston,  3   Sm.   &  Gif.  337  ;  Taylor  v.  Taylor,  1  Atk.  386 ; 
Dyeri7.  Dyer,  2  Cox,  93 ;  Fordyce  w.  Wallis,   3  Bro.   Ch.   ,576;  Squire  w. 
Harder,  1  Paige,  494 ;  Balbeck  v.  Donaldson,  6  Am.  Law  Reg.  148 ;  Jack- 
son i'.  Garnsey,  16  Johns.  189;  Jackson  v.   Caldwell,  1  Cow.  622  j  Far- 
rington  v.  Barr,  36  N.  H.  431. 

8  Hill  on  Trustees,  170  (4th  Am.  ed.). 

*  Cook  V.  Fountain,  3  Swanst.  590 ;  Clavering  v.  Clavering,  2  Vern. 
473;  Boughton  v.  Boughton,  1  Atk.  625;  Cecil  v.  Butcher,  2  Jac.  &  W. 
573 ;  Jeffreys  v.  Jeffreys,  1  Cr.  &  Ph.  138;  Dummer  v.  Pitcher,  2  M.  &  K. 
262  ;  Leman  v.  Whitley,  4  Russ.  423 ;  Graff  v.  Rohrer,  35  Md.  327. 
220 


CHAP,  v.] 


VOLUNTARY   CONVEYANCE. 


[§  1G3. 


estate  is  had  and  held  to  the  grantee,  his  heirs  and  assigns, 
to  Ids  and  their  use  mid  behoof,  no  trust  can  result,  as  it  is 
a  rule  that  when  a  use  is  declared,  no  other  use  can  be 
shown  to  result.'  (a)  A  fortiori  a  trust  deed  cannot  be 
turned  into  a  resulting  trust  for  the  grantor  by  proof  that 
it  was  without  consideration.^  And  when  a  deed  contains 
covenants  of  warranty,  no  use  can  result  to  the  grantor,  for 
such  covenants  estop  him  from  claiming  any  legal  or  bene- 
ficial interest  in  the  estate.^ 


§  1G3.  It  may  be  stated  that  courts  do  not  favor  voluntary 
conveyances,  and  will  not  lend  their  aid  to  enforce  them  if 
they  arc  imperfectly  executed,  and  their  decrees  are  neces- 
sary to  give  them  validity  and  force.  In  such  cases  equity 
will  not  interfere,  but  will  leave  the  parties  to  their  rights 
at   law.*  {h)     And,  further,    equity  will    always    look    upon 

1  Graves  v.  Graves,  29  N.  H.  129;  Sprague  v.  Woods,  4  "Watts  &  S. 
192;  Vaiidervolgen  v.  Yates,  5  Seld.  219  ;  Gove  v.  Leaioyd,  140  Mass.  524. 

2  Bobb  V.  Bobb,  89  Mo.  419. 

8  Philbrook  v.  Delano,  29  Maine,  410. 
*  Lane  v.  Ewing,  31  Mo.  75. 


(a)  Lovett  v.  Taylor,  54  N.  J. 
Eq.  311. 

(li)  See  Rogers  v.  Rogers  (R.  I.), 
39  Atl.  7.15  ;  supra,  §  97,  note  (a). 
lu  voluntary  gifts,  equity  does  not 
aid  iu  perfecting  a  gift,  but  the 
cestui  que  trust  acquires,  upon  a  de- 
claration of  trust,  an  absolute,  equi- 
table estate  or  title,  and  not  a  mere 
right  to  ask  for  a  title;  and  when 
there  is  a  valuable  consideration,  a 
contract  to  declare  a  trust  may  in 
equity  be  deemed  equivalent  to  an 
actual  declaration.  Wittingham  v. 
Lightliipe,  40  N.  J.  Eq.  429;  Janes 
V.  Falk,  50  id.  468,  472;  Smith's 
Estate,  144  Penn.  St.  428  ;  William- 
son V.  Yager,  91  Ky.  282  ;  McCreary 
V.  Gewinner  (Ga.),  29  S.  E.  960. 
Although  a  parol  agreement  to  exe- 


cute a  trust  cannot  be  enforced,  and 
a  mere  refusal  to  perform  a  contract 
is  not  in  itself  a  fraud,  yet  when 
property  is  conveyed  in  reliance  on 
its  fulfilment,  equity  will  not  per- 
mit a  party  to  consummate  a  fraud 
by  retaining  it  without  considera- 
tion and  in  violation  of  his  agree- 
ment. Randall  v.  Constans,  33 
IMinn.  329;  Thompson  v.  Marley, 
102  Mich.  476  ;  Whitehouse  v. 
Whitehouse,  90  Maine,  468;  In  re 
IMcAuley's  Estate,  184  Penn.  St. 
124  ;  Dougherty  v-  Shillingsburg, 
175  id.  50  ;  McCartney  v.  Ridgway, 
160  111.  129;  Forney  v.  Reniey,  77 
Iowa,  549 ;  First  Nat.  Bank  v. 
Fries,  121  N.  C.  241. 

An  unconditional  gift  made  by  a 
person  in  extremis  may  take  effect  as 

221 


§  164.] 


RESULTING   TRUSTS. 


[chap.  V. 


such  conveyances  with  suspicion,  especially  if  made  to 
strangers  for  no  particular  purpose.  If  any  fraud  or  mis- 
representation is  practised  upon  a  grantor,  equity  will  fasten 
a  trust  upon  the  conscience  of  the  fraudulent  grantee.^  If 
fraud  upon  the  grantor  is  alleged,  the  fact  that  the  convey- 
ance was  without  consideration  is  always  considered  as 
pertinent  evidence,  and  will  be  considered  as  one  badge  of 
fraud,  if  there  are  other  facts  and  circumstances  pointing 
in  that  direction,^  A  disposition  by  will,  however,  is  not 
subject  to  these  rules,  as  a  gift  by  will  imports  a  considera- 
tion, and  no  averments  by  parol  can  be  received  to  fasten  a 
use  or  trust  upon  such  gift;  but  the  donee  will  "take  both 
the  legal  and  beneficial  estate,  unless  it  clearly  appears  from 
the  whole  will  that  such  was  not  the  intention  of  the  donor. ^ 

§  164.  It  is  further  to  be  observed  that  voluntary  convey- 
ances to  a  wife  or  child  were  never  within  the  rule  that  such 
gifts  raised  a  resulting  trust  for  the  donor.  In  conveyances 
of  this  kind  to  the  donor's  family  the  analogy  of  the  common 
law  was  followed,  whereby,  if  a  feoffment  was  made  to  a 
stranger  without  consideration,  a  use  resulted  to  the  feoffor; 
but  if  a  feoffment  was  made  to  a  wife  or  child,   no   use 


1  Post,  Chap.  VI. 


2  Post,  §  187. 


8  Ante,  §  94. 


a  gift  inter  vivos.  Henschel  v.  Maurer, 
69  Wis.  576.  A  gift  inter  vivos,  and 
a  voluntary  trust,  which  is  an  equi- 
table gift,  must  both  be  completed 
by  delivery,  while  a  trust  requires 
only  a  declaration.  Bath  Savings 
Inst'n  V.  Hatliorn,  88  Maine,  122, 
125.  A  voluntary  contract  to  create 
a  trust  will  not  be  enforced  or  per- 
fected in  equity  so  far  as  it  remains 
executory.  Norway  S.  Bank  v. 
Meniam,  88  Maine,  146;  Landon 
V.  Hutton,  50  N.  J.  Eq.  500.  In 
equity  a  voluntary  trust  is  enforce- 
able even  when  the  cestui  que  trust 
does  not  assent  to  or  know  of  it. 
222 


Connecticut  River  S.  Bank  v.  Albee, 
64  Vt.  571  ;  Williams  v.  Haskius, 
66  Vt.  378  ;  Cathcart  v.  Xelson,  70 
Vt.  317  ;  Maloney  v.  Tilton,  51  N.  Y. 
S.  19.  When  executed,  it  is  irrev- 
ocable. In  re  Soulard,  141  Mo.  642  ; 
Landon  v.  Hutton,  50  N.  J.  Eq.  500; 
Polk  I'.  Boggs,  122  Cal.  114. 

A  writing,  which  shows  intention 
to  make  an  absolute  gift,  but  is  not 
delivered,  will  not  be  treated  as 
valid  as  a  declaration  of  trust. 
Norway  S.  Bank  v.  Merriam,  88 
Maine,  146;  Wadd  v.  Hazelton,  137 
N.  Y.  215;  Sprague  v.  Thurber^  17 
R.  I.  454,  458. 


CIIAP.    v.]  VOLUNTAUY    CONVEYANCE.  [§  1G5. 

resulted,  for  the  consideration  of  blood  was  held  a  good 
consideration,  and  an  advance  or  settlement  was  presumed. 
So  marriage  was  not  only  a  good  but  a  valuable  considera- 
tion, and  no  trusts  could  result  from  conveyances  made  in 
consideration  of  marriage,  either  of  the  grantor  or  of  any 
member  of  his  family.  But  if  voluntary  conveyances  to 
wife  or  children  were  made  by  a  man  deeply  indebted,  or 
with  an  intention  to  delay  his  creditors,  while  he  could  not 
raise  a  trust  in  his  own  favor,  yet  his  creditors  could  avoid 
the  conveyances  or  raise  a  trust  upon  them  in  their  own 
favor  to  the  extent  of  their  claims.* 

§  165.  If  the  voluntary  conveyance  is  made  for  some 
illegal  or  fraudulent  purpose,  whether  it  is  a  common-law  or 
a  modern  conveyance,  no  trust  will  result  to  the  grantor;  as, 
if  the  voluntary  conveyance  is  made  to  delay,  hinder,  and 
defeat  creditors,^  or  to  give  a  man  a  colorable  qualification 
to  vote,  or  to  sit  in  parliament,^  or  to  kill  game,^  or  to  dis- 
qualify the  grantor  for  an  office,^  or  to  commit  any  other 
fraud, ^  for  the  reason  that  the  rules  of  law  cannot  be  used, 

1  Dunnica  v.  Coy,  28  Mo.  5-25  ;  Spirett  v.  Willows,  3  De  G.,  J.  &  S. 
293  ;  Robinson  v.  Robinson,  17  Ohio  St.  430 ;  Baldwin  v.  Cainpfield,  4 
Halst.  Ch.  891 ;  Spicer  v.  Ayers,  2  N.  Y.  Sup.  Ct.  626. 

2  Cottington  v.  Fletcher,  2  Atk.  156 ;  Chaplin  v.  Chaplin,  3  P.  Wms. 
233;  Muckleston  v.  Brown,  6  Yes.  08;  Stewart  v.  Iglehart,  7  Gill  &  J. 
132  ;  Bryant  v.  Mansfielil,  22  I\Iaine,  310  ;  Randall  v.  Phillips,  3  Mason, 
378 ;  "Wilson  v.  Cheshire,  1  ^IcCord,  2:33  ;  Mason  v.  Baker,  1  A.  K.  Marsh. 
208 ;  Chaniberlayne  v.  Temple,  2  Rand.  381: ;  Stewart  v.  Dailey,  6  Litt. 
212  ;  Jackson  v.  Dutton,  3  Har.  98;  McClure  v.  Puree!,  3  A.  K.  Marsh. 
61  ;  Steele  v.  Worthington,  2  Ilam.  82. 

8  Pitt's  Case,  cited  Anib.  260;  Curtis  v.  Perry,  6  Ves.  7-47  ;  Cutler  v. 
Tuttle,  19  N.  J.  Ch.  .553,  502. 

■*  Roberts  v.  Roberts,  Daniel,  143;  Brackeubury  v.  Brackenbury,  2 
Jac.  &  W.  391  ;  Cecil  v.  Butcher,  id.  565. 

6  Birch  V.  Blagrave,  Amb.  264  ;  Gaskell  v.  Gaskell,  2  Y.  &  J. 
502 ;  Vandenberg  v.  Palmer,  4  K.  &  J.  204 ;  Childers  r.  Childers,  1 
De  G.  &  J.  482;  Field  v.  Lonsdale,  13  Beav.  78  ;  Doe  c  Rutledge,  Cowp. 
705. 

8  Tipton  V.  Powell,  2  Cold.  19  ;  Haigh  v.  Kaye,  L.  R.  7  Ch.  4731 
Ownes  V.  Ownes,  23  N.  J.  Eq.  60 ;  Miller  v.  Davis,  50  Mo.  572. 

223 


§  165  a.]  KESULTING   TRUSTS.  [CHAP.    V. 

controlled,  or  avoided  by  parties  with  a  fraudulent  intent  to 
do  that  indirectly  which  they  cannot  do  directly.^ 

§  165  a.  A  resulting  trust  is  to  be  performed  or  executed 
by  the  trustee  by  transferring  the  title  to  the  cestui  que  trust 
at  his  request; 2  but  if  the  trustee  has  incurred  any  expenses 
upon  the  estate  by  paying  taxes  or  making  improvements,  or 
advancing  part  of  the  purchase-money,  he  will  be  allowed  to 
hold  the  estate  until  his  advances  are  repaid.^ 

1  Scobie  V.  Blanchard,  3  N.  H.  170  ;  Pritchard  v.  Brown,  4  N.  H.  401 ; 
Hutchins  v.  Heywood,  50  N.  H.  488 ;  Sugd.  V.  &  P.  416. 

2  Millard  v.  Hathaway,  27  Cal.  119. 

3  Mahoy  v.  Sloans,  44  Vt.  311. 


224 


CHAP.  VI.]         CONSTRUCTIVE  TRUSTS. 


CHAPTER   VI. 

CONSTRUCTIVE   TRUSTS. 

§  166.     General  nature  of  constructive  trusts.     Thev  arise  from  fraud. 

§  167.    Jurisdiction  of  equity  over  them,  and  the  relief  given  by  converting  the 
offending  party  into  a  trustee. 

§  168.     Classification  of  constructive  trusts. 

§  169.     General  definition  of  a  fraud  in  equity. 

§  170.     Principles  upon  which  equity  gives  relief  against  fraud. 

§  171.     Actual  fraud,  or  sugijestio  falsi. 

§  172.  Illustrations  of  actual  fraud. 

§  173.  The  misrepresentations  and  frauds  that  equity  will  relieve  against. 

§  1 74.  The  misrepresentation  must  be  of  facts  material  to  the  contract. 

§  175.  The  misrepresentation  must  be  of  something  peculiarly  within 

the  party's  knowledge. 

§  176.  The  relief  will  depend  ujjon  the  form  in  which  it  is  sought. 

§  177.     Fraud  that  arises  from  concealment,  or  suppressio  veri. 

§  178.  This  kind  of  fraud  depends  much  upon  the  relation  of  the  parties. 

§  179.  When  a  person  may  not  be  silent. 

§  180.  Suppressio  veri  Is  generally  in  law  an  affirmative  act. 

§  181.     Courts  will  relieve  where  acts  are  fraudulently  prevented  from  being 
done  —  illustrations. 

§  1 82.  Trust  established  where  a  party  fraudulently  prevents  a  will  from 

beinjj  made  in  another's  favor. 

§  183.     Trust  established  in  odium  spolintoris. 

§  184.     Trust  established  upon  a  conveyance  made  in  ignorance  or  mistake. 

§  185.     But  if  the  conveyance  is  a  compromise,  courts  will  support  it  if  possible. 

§  186.     Trust  established  when  a  deed  by  mistake  contains  more  land  than  was 
intended. 

§  187.     Misrepresentation  of  the  value  of  property  and  inadequacy  of  considera- 
tion. 

§  188.     Catching  bargains  with  young  heirs  and  reversioners. 

§  189.     Trust  arising  from  mental  incapacity  or  imbecility  of  parties. 

§  190.  Mental  weakness  —  old  age. 

§  191.  Drunkenness. 

§  192.  Duress  —  oppression  and  distress. 

§  193.  Where  several  of  these  circumstances  are  found  combined. 

§  194.     Frauds  that  arise  by  construction  from  the  fiduciary  relations  of  parties. 

§  195.  Between  tnustee  and  cestui  que  trust. 

§  196.  Renewal  of  leases  in  his  own  name  by  trustee. 

§§  197,  198.         Contracts  prohibited  between  trustee  and  cestui  que  trtist,  but  the 
cestui  que  tmst  alone  can  avoid  them. 

§  199.  Rule  does  not  apply  to  dry  trustees. 

VOL.  I. —  15  225 


§  166.]  CONSTRUCTIVE  TRUSTS.         [CHAP.  VI. 

§  200.  Guardians  and  wards. 

§  201.  Parents  and  children. 

§§  202,  203.     Attorney  and  client. 
§  204.  Kule  ajjplies  to  all  confidential  advisers. 

§  205.  Administrators  and  executors. 

§  206.  Princi{)al  and  agent. 

§  207.  Directors  of  corporations. 

§  208.  Trusts  that  arise  out  of  inducements  held  out  for  marriage. 

§  209.  Other  fiduciary  relations. 

§  210.  Undefined  fitluciary  and  friendly  relations. 

§  211.     Trusts  arising  from  the  frauds  of  third  persons. 
§  212.  Frauds  upon  third  persons  as  creditors,  etc. 

§  213.  Conveyances  by  man  or  woman  on  the  point  of  marriage. 

§  214.  Illegal  and  immoral  contracts. 

§  215.  Fraud  by  pretending  to  buy  for  another. 

§  216.  Devises  or  conveyances  upon  secret  illegal  trusts. 

§  217.  Purchases  from  trustees  with  knowledge  of  the  trusts. 

§  218.  Purchases  without  notice  of  the  trust. 

§  219.  The  safeguards  thrown  around  such  purchases. 

§  220.  The  consideration  in  such  cases. 

§  221.  The  consideration  must  have  been  actually  paid. 

§  222.  Notice  of  the  trust  —  to  whom  it  may  be. 

§  223.  Notice  may  be  actual  or  constructive. 

§  224.  Purchase  of  property  from  executors  or  administrators  —  real  estate. 

§  225.  Personal  property. 

§  226.     Constructive  trusts  may  be  proved  by  parol  —  statute  of  frauds  does  not 

apply. 
§  227.     The  right  to  set  aside  a  conveyance  for  fraud  is  an  equitable  estate  that 

may  be  conveyed  and  devised. 
§§  228-230.  Statute  of  frauds  and  the  time  within  which  steps  must  be  taken  to 

avoid  a  fraudulent  conveyance. 

§  166.  The  trusts  thus  far  considered  arise  from  the  express 
agreements  and  intentions  of  the  parties,  or  from  their  inten- 
tions imjjJied  from  their  agreements,  or  result  from  their 
express    or    implied    agreements,    (a)     These   trusts    arise, 

(a)  As    to    the   distinction    be-  conveyance  secretly,  contrary  to  the 

tween     express     and    constructive  beneficiary's  wishes,  in  violation  of 

trusts,  see  Cunningham  v.  Foot,  3  his  duty  to  him,  and  in  fraud  of  his 

A.  C.  984  ;  Price  v.  Phillips,  13  Rep.  rights,  the  trust  is  a  constructive  or 

(Eng.)191;   Culbertson  v.   The  H.  involuntary  trust,  and  not  a  result- 

Witbeck  Co.,  127  U.  S.  326.     Usu-  ing  trust.     Farmers'  and  Traders' 

ally  there  is  no  element  of  inten-  Bank  v.  Kimball  Milling  Co.,  1  So. 

tional  fraud  in  a  resulting  or  im-  Dak.  388,  393  ;  Buck  v.  Swazey,  35 

plied  trust,  but  the  law  presumes  Maine,    41  ;    56    Am.    Dec.     681 ; 

the  intent  from  the  facts  and  cir-  Giles  v.  Anslow,  128  111.  187  ;  May- 

cumstances       accompanying       the  field  v.  Forsyth,  164  111.  32;  Thonip- 

transaction.      When    one    takes   a  son    v.    Marley,    102    Mich.    476 ; 
226 


CHAr.    VI.] 


CONSTRUCTIVE   TRUSTS. 


[§  166. 


result,  or  arc  implied  from  the  contracts  and  relations  of 
the  parties.  The  intention  of  the  parties  as  manifested  in 
contracts  made  in  good  faith  is  the  foundation  of  them. 
There  is  another  large  class  of  trusts  which  arise  from  frauds 
committed  by  one  party  upon  another.  Thus,  if  one  party 
procures  the  legal  title  to  property  from  another  by  fraud  or 
misrepresentation  or  concealment,  or  if  a  party  makes  use 
of  some  influential  or  confidential  relation  which  he  holds 
towards  the  owner  of  the  legal  title,  to  obtain  such  legal 
title  from  him  upon  more  advantageous  terms  than  he  could 
otherwise  have  obtained  it,  equity  will  convert  such  party 
thus  obtaining  property  into  a  trustee.  If  a  person  obtains 
the  legal  title  to  property  by  such  arts  or  acts  or  circum- 
stances of  circumvention,  imposition,  or  fraud,  or  if  he 
obtains  it  by  virtue  of  a  confidential  relation  and  influence 
under  such  circumstances  that  he  ought  not,  according  to  the 
rules  of  equity  and  good  conscience  as  administered  in  chan- 
cery, to  hold  and  enjoy  the  beneficial  interest  of  the  property, 


Wilmoth  V.  Wilmoth,  34  W.  Va. 
426  ;  Curreiice  v.  Ward,  43  W.  Va. 
307  ;  Barger  v.  Barger,  30  Oregon, 
2G8  ;  Sale  v.  Thornberry,  86  Ky. 
266  ;  Ramsey  v.  Ramsey  (N.  C),  31 
S.  E.  83.5. 

A  constructive  trust  arising  from 
a  wrongful  purchase  in  one's  own 
name  with  another's  funds  is  not 
merely  a  right  or  cause  of  action 
personal  to  the  beneficiary,  author- 
izing him  to  sue  for,  and  thereby 
acquire  an  estate  in  the  land,  but, 
like  a  resulting  trust  proper,  or  the 
equity  of  redemption  of  a  mortira- 
gor  after  forfeiture,  it  is,  in  and  of 
itself,  an  equitable  estate,  vendible 
and  descendible  as  any  other  in- 
terest in  lands,  and  capable  of  being 
executed  into  a  legal  estate  by  the 
decree  of  a  court  of  equity,  at  the 
suit  of  the  beneficiary,  or  any  one 
in   privity    with   him,   in  blood  or 


estate.      Sanford  v.    Ilamner,    115 
Ala.  406,  416. 

When  the  object  of  a  bill  in 
equity  is  single,  the  subject-matter 
the  same,  and  the  appropriate  pray- 
ers for  relief  not  inconsistent,  a  bill 
is  not  necessarily  multifarious, 
which  in  one  aspect  shows  an  ex- 
press trust  arising  from  the  con- 
tract, in  another  a  purely  result- 
ing trust,  and  in  another  the  use 
of  the  assets  of  a  cestui  que  trust  by 
a  trustee  in  payment  of  property  to 
which  he  took  title  in  his  own  name, 
althougli  the  rights  of  the  party 
whose  money  was  used  are  not  sub- 
ject in  all  respects  to  the  same  prin- 
ciples of  law.  Kelly  v.  Browning, 
113  Ala.  420,  444  ;  Graves  r.  Cor- 
bin,  132  U.  S.  571,  586;  Mills  v. 
Ilurd,  32  Fed.  Rep.  127;  Kelley  v. 
Boettcher,  85  id.  55. 

227 


§  166.]  CONSTRUCTIVE   TRUSTS.  [CIIAP.   VI. 

courts  of  equity,  in  order  to  administer  complete  justice  be- 
tween the  parties,  will  raise  a  trust  by  construction  out  of 
such  circumstances  or  relations ;  and  this  trust  they  will 
fasten  upon  the  conscience  of  the  offending  party,  and  will 
convert  him  into  a  trustee  of  tlic  legal  title,  and  order  him  to 
hold  it  or  to  execute  the  trust  in  such  manner  as  to  protect 
the  rights  of  the  defrauded  party  and  promote  the  safety  and 
interests  of  society.^  Such  trusts  are  called  constructive  trusts. 
They  differ  from  other  trusts  in  that  they  are  not  within  the 
intention  or  contemplation  of  the  parties  at  the  time  the  con- 
tract is  made  from  which  they  are  construed  by  the  court,  but 
they  are  thrust  upon  a  party  contrary  to  his  intention  and 
against  his  consent.  The  reason  is  that  courts  of  equity  have 
a  large  jurisdiction  over  all  matters  of  trust  and  confidence. 
They  control  and  direct  their  administration,  and  in  certain 
cases  they  annul  and  put  an  end  to  them  by  directing  the 
trustee  to  convey  the  trust  property  to  the  person  beneficially 
interested.  They  can  also  remove  the  trustees  and  appoint 
new  ones.  Therefore,  courts  of  equity  by  raising  a  trust  by 
construction  in  cases  of  fraud  can  do  equal  and  complete 
justice  between  the  parties.  By  this  fiction  of  a  constructive 
trust  courts  of  equity  have  great  powers.  They  can  order  the 
constructive  trustee  to  hold  the  legal  title  for  the  original 
owner  upon  just  and  proper  terms.  If  he  has  paid  any  value 
for  the  legal  estate,  they  can  order  the  estate  to  stand  as 
security  for  it ;  they  can  order  accounts  to  be  taken  and 
settled ;  ^  they  can  decree  a  reconveyance  of  the  property,  or 
they  can  put  an  end  to  the  trust  by  declaring  the  conveyances 
to  the  constructive  trustee  to  be  null  and  void,  and  order  that 
they  be  surrendered  up  and  cancelled.  In  all  such  cases  the 
relief  is  really  founded  on  fraud  and  not  on  constructive  trust. 
When  it  is  said  that  the  person  who  fraudulently  receives  or 

1  Thompson  v.  Thompson,  16  Wis.  91;  McLane  v.  Johnson,  43  Vt.  48; 
Pillow  V.  Brown,  20  Ark.  240;  Collins  v.  Collins,  6  Lans.  368;  Hollings- 
hed  V.  Simms,  51  Cal.  158 ;  Hendrix  v.  Nunn,  46  Tex.  141 ;  Kayser  v. 
Maugham,  8  Col.  232;  Johnson  v.  Giles,  69  Ga.  652. 

2  Thompson  v.  Thompson,  16  Wis.  91 ;  McLane  v.  Johnson,  43  Vt. 
48;  Colhns  v.  Collins,  6  Lans.  (N.  Y.)  368. 

228 


CHAP.   VI.]  CONSTRUCTIVE   TRUSTS.  [§  166. 

possesses  himself  of  trust  property,  or  who  has  defrauded 
another  of  his  estate  by  misrepresentation,  concealment,  or 
other  fraudulent  practices,  is  converted  by  the  court  into  a 
trustee  and  ordered  to  account  for  or  rcconvey  the  property, 
the  expression  is  used  for  the  purpose  of  describing  the  nature 
and  extent  of  the  remedy  against  him,  and  it  denotes  that  the 
parties  defrauded  or  beneficially  entitled  have  the  same  rights 
and  remedies  against  him  as  they  would  be  entitled  to  against 
an  express  trustee  who  had  fraudulently  committed  a  ])reacli 
of  the  trust.  Generally  speaking,  the  constructive  trusts  de- 
scribed in  this  chapter  are  not  trusts  at  all  in  the  strict  and 
proper  signification  of  the  word  "  trusts ; "  but  as  courts  are 
agreed  in  administering  the  same  remedy  in  a  certain  class 
of  frauds  as  are  administered  in  fraudulent  breaches  of  trusts, 
and  as  courts  and  the  profession  have  concurred  in  calling 
such  frauds  constructive  trusts,  there  can  be  no  misapprehen- 
sion in  continuing  the  same  phraseology,  while  a  change  might 
lead  to  confusion  and  misunderstanding.^  (a) 

^  See  Westbury,  Lord  Chancellor,  in  Rolfe  v.  Gregory,  4  De  G.,  J.  & 
S.  679. 

(o)  See  San  ford  v.  Sanford,  139  trustee  thereof  for  the  benefit  of  the 

U.   S.  G42;  Benedict  v.  Moore,  70  equitable  title.      Bailey   v.    Winn, 

F.  K.  472 ;  Aborn  v.  Padelford,  17  101    Mo.    649 ;     Indiana,     &c.    K. 

II.  I.   143;  Stanford^.  Mann,  1G7  Co.    v.     Swannell,     157     111.     616; 

III.  79;  Lewis  /•.  Liiidley,  19  Mont,  see  In  re  Champion,  [1893]  1  Ch. 
42-2;  Pugh  i\  Miller,  126  Ind.  189  ;  101;  67  L.  T.  344;  91  L.  T. 
Giffeii  V.  Taylor,  139  Ind.  573  ;  Kelly  J.  57.  And  if  he  fraudulently 
(.-.  Browning,  113  Ala.  420;  Tecum-  conveys  it  to  a  purchaser  in 
seh  Nat.  Bank  v.  Russell,  50  Neb.  good  faith,  he  holds  the  proceeds 
277 ;  Walker  v.  Daly,  80  Wis.  222  ;  and  the  interest  thereon  in  trust, 
Davis  V.  Settle,  43  W.  Va.  17  ;  such  proceeds  being  considered 
Shoufe  V.  Griffiths,  4  Wash.  161  ;  in  equity  as  the  land  itself.  Val- 
Boston  &  C.  S.  Co.  v.  Reed,  23  Col.  entine  v.  Richardt,  126  N.  Y. 
523;  Jackson  v.  Hyde,  91  Cal.  463;  272.  Where  an  insolvent  fraudu- 
Converse  v.  Sickles,  44  N.  Y.  S.  lently  procured  a  sale  of  goods  to 
1080 ;  Pope  v.  Dapray,  176  111.  478.  him,  and  then  resold  them,  he,  or 

The  forms  and  varieties  of  invol-  his  voluntary  assignee,  holds  their 
untary  trusts  are  practically  limit-  proceeds,  when  capable  of  specific 
less.  Thus,  whenever  one  acquires  identification,  as  in  notes  or  credits, 
a  legal  title  with  notice  that  the  as  a  constructive  trustee  for  the 
equitable  title  is  in  another,  he  is  a    original  owner.      American  Sugar 

229 


§  167.] 


CONSTRUCTIVE   TRUSTS. 


[chap,  VI. 


§  167.  Courts  of  common  law  have  an  extensive  jurisdiction 
in  cases  of  fraud,  but  it  is  readily  seen  that  the  remedy  in 
equity  is  more  easily  moulded  to  the  varying  circumstances 
of  different  cases.  As  between  the  immediate  parties,  fraud 
makes  all  things  void  which  are  done  under  its  direct  influ- 
ence. Thus,  non  est  factum  can  be  pleaded  to  a  suit  upon  a 
deed  or  bond,  procured  by  fraud  or  duress,  on  the  ground  that 
whatever  is  done  under  the  influence  of  fraud  is  not  done  at 
all.^     The  same  evidence  is  admissible  in  both  courts.     Prob- 


1  1  Chitty,  Plead.  483.  Courts  of  chancery  in  England  and  the  courts 
of  the  United  States,  and  of  many  of  the  several  States,  have  a  jurisdic- 
tion in  equity  to  set  aside  deeds  and  contracts  procured  by  misrepresenta- 
tion, concealment,  collusion,  or  fraud.  In  Massachusetts,  the  Supreme 
Judicial  Court  has  jurisdiction  in  equity  in  cases  of  fraud,  accident,  and 
mistake,  according  to  the  usage  and  practice  of  courts  of  equity  where 
there  is  not  a  plain,  adequate,  and  complete  remedy  at  law.     Gen.  Stat. 


Ref.  Co.  V.  Fancher,  145  N.  Y.  .552. 
So  equity  has  jurisdiction  to  decree 
an  account  of  the  rents  and  profits 
of  lands  against  a  disseizor,  when 
the  land  owners  are  infants  or  per- 
sons non  compos  mentis.  Robinson 
V.  Burritt,  6G  Miss.  3.56.  But  an 
innocent  tenant,  entering  under  the 
disseizor,  and  paying  rent  to  him 
without  notice  of  such  owner's  title, 
will  not  be  required  to  again  pay 
the  rent  to  the  owner.  Boylan  v. 
Deinzer,  45  N.  J.  Eq.  485.  A 
grantee  of  land  purchased  by  a  trus- 
tee with  trust  funds,  though  without 
notice,  holds  it  as  trustee  of  the 
beneficiary,  if  he  receives  it  only  in 
payment  of  the  trustee's  prior  in- 
debtedness to  him.  Orb  v.  Coap- 
stick,  136  Ind.  313  ;  Darling  v.  Potts, 
118  Mo.  506.  So  a  mother  of  a 
ward,  who  receives  and  retains  the 
trust  funds  from  its  guardian,  is  a 
trustee  de  son  tort.  Huntley  v. 
Denny,  65  Vt.  185.  Even  if  an  in- 
sane person's  guardian  obtains  11- 
230 


cense  of  court  to  sell  the  ward's 
land  for  fictitious  debts,  the  pur- 
chaser at  the  sale,  if  he  has  knowl- 
edge of  the  fraud,  will  be  held  a 
tnistee  for  such  ward.  Dickel  v. 
Smith,  38  W.  Va.  635.  A  supposed 
gift  from  a  person  who  is  in  fact 
non  compos  creates  a  trust  for  such 
person's  benefit.  Teegarden  v. 
Lewis,  145  Ind.  98.  Fraud  is  not  a 
necessary  element  in  a  constructive 
trust  when  a  fiduciary  relation  al- 
ready exists.  Butler  v.  Weeks,  33 
N.  Y.  S.  1090;  Alaniz  v.  Casenave, 
91  Cal.  41. 

An  involuntary  trust  is  enforce- 
able against  persons  who  come  into 
possession  of  the  property  only  to 
the  same  extent,  in  the  same  man- 
ner, and  with  like  force  and  effect  as 
against  the  original  trustee.  Gray 
V.  Farmers'  Exchange  Bank,  105 
Cal.  60,  64 ;  Roggenkamp  v.  Rog- 
genkarap,  68  F.  R.  605  ;  Edwards  v. 
Culberson,  111  N.  C.  342. 


CIIAP.    VI.]  CONSTRUCTIVE   TRUSTS.  [§  1G7. 

ably  the  same  evidence  that  would  convince  a  court  of  equity 
that  a  deed  was  procured  by  fraud,  and  that  the  grantee  ought 
to  hold  as  a  constructive  trustee  for  the  grantor,  would  also 
persuade  a  jury  to  return  a  verdict  against  such  deed.  In 
some  States  the  parties  have  a  right  to  trial  by  jury  of  all 
questions  of  fact,  as  of  fraud  or  no  fraud,  arising  upon  the 
pleadings  in  equity.  In  other  States,  the  court  may  in  its 
discretion  send  such  issues  of  fact  to  trial  by  a  jury.^  Thus, 
the  remedy  in  equity  in  cases  of  fraud  is  sought,  not  so  much 
from  the  mode  of  proof  and  the  rules  of  evidence,  as  it  is 

ch.  113,  §  2.  It  was  supposed  by  the  profession  that  this  statute  con- 
ferred upon  the  court  a  jurisdiction  in  equity  in  accordance  with  the 
general  usages  of  the  courts  of  equity  in  England  and  the  United  States. 
But  the  court  by  a  strict  construction  of  the  words,  "  where  there  is  not 
a  plain,  adequate,  and  complete  remedy  at  law,"  denied  their  jurisdiction 
in  cases  of  fraud,  where  an  action  at  law  might  be  maintained  by  the  in- 
jured party.  Thus,  if  a  deed  is  procured  from  a  person  by  fraud,  he  can- 
not maintain  a  suit  in  equity  to  set  it  aside,  if  it  is  possible  to  maintain 
a  real  action  for  the  recovery  of  the  land;  and  as  such  deeds  are  void,  or 
at  least  voidable,  such  action  may  be  maintained  at  law,  and  the  court 
has  no  jurisdiction  in  equity.  Bassett  v.  Brown,  10  Mass.  355.  This  de- 
cision goes  upon  the  strict  meaning  of  the  words,  "  where  there  is  not  a 
plain,  adequate,  and  complete  remedy  at  law,"  words  which  were  formerly 
found  in  every  bill  in  equity,  in  order  to  give  the  court  jurisdiction.  But 
they  did  not  exclude  the  jurisdiction  in  equity,  if  the  court  had  a  juris- 
diction, concurrent  or  otherwise,  according  to  the  usage  and  practice  of 
courts  of  equity.  The  court  in  ^Massachusetts  still  has  jurisdiction  in 
equity  in  cases  of  fraud,  where  there  is  a  peculiar  complication  of  circum- 
stances or  of  parties.  Pratt  v.  Pond,  5  Allen,  59 ;  Glass  v.  Hulbert,  102 
Mass.  20;  Martin  t'.  Graves,  5  Allen,  601 ;  Whittemore  w.  Cowell,  7  Allen, 
446;  Pool  r.  Lloyd,  5  Met.  528.  But  the  practitioner  must  determine  at 
his  peril  whether  a  particular  case  comes  within  such  jurisdiction.  It 
would  have  been  more  simple  and  certain  for  the  administration  of  justice, 
to  have  given  to  the  words  of  exclusion  the  meaning  attached  to  them  in 
bills  of  equity,  and  to  have  made  the  jurisdiction  of  the  court  to  depend 
upon  the  known  usage  and  practice  of  courts  of  equity.  Thus,  both  the 
court  and  the  bar  would  have  had  some  known  ground  to  go  upon.  Of 
course  these  remarks  apply  only  to  those  cases  of  fraud  where  there  is  a 
jurisdiction  in  equity  to  set  aside  conveyances  procured  by  fraud,  and  for 
other  relief  according  to  the  known  usage  and  practice  of  courts  of  equity, 
and  not  to  mere  cases  of  cheating  and  fraud  in  many  of  the  affairs  of  life. 
See  Miller  r.  Scamraon,  52  N.  II.  009- 
1  1  Story's  Eq.  Jur.  §  190  a, 

231 


§  168.]  CONSTRUCTIVE    TKUSTS.  [CIIAP.   VI. 

from  the  complete  character  of  the  relief  given.  It  is  true, 
that  in  some  cases  courts  of  equity  will  act  upon  circum- 
stances and  presumptions  of  fraud  which  courts  of  law  would 
not  deem  satisfactory  proofs.^  As  if  a  guardian  purchases  an 
estate  from  a  ward,  equity  will  presume  fraud  from  the  exist- 
ence of  the  relation  of  guardian  and  ward, —  a  rule  that 
courts  of  law  would  not  always  act  upon.  Lord  Eldon  said, 
that  courts  of  equity  in  many  cases  would  order  an  instru- 
ment to  be  delivered  up,  as  unduly  obtained,  which  a  jury 
would  not  be  justified  in  impeaching  by  the  rules  of  law.^ 
However,  fraud  must  be  proved  in  both  courts,  and  is  not  to 
be  imputed  from  mere  circumstances  of  suspicion.  It  is  not, 
however,  the  rule  that  the  court  will  not  presume  or  construe 
a  trust  to  arise  except  in  cases  of  absolute  necessity  ;3  for 
courts  of  equity  will  act  upon  the  just  preponderance  of  all 
the  facts  and  circumstances  of  proof  in  the  case.* 

§  168.  Constructive  trusts  may  be  divided  into  three  classes, 
to  be  determined  according  to  the  circumstances  under  which 
they  arise.  First,  trusts  that  arise  from  actual  fraud  practised 
by  one  man  upon  another.  Second,  trusts  that  arise  from  con- 
structive fraud.^  In  this  second  class  the  conduct  may  not  be 
actually  tainted  with  moral  fraud  or  evil  intention,  but  it  may 
be  contrary  to  some  rule  established  by  public  policy  for  the 
protection  of  society.  Thus,  a  purchase  made  by  a  guardian 
of  his  ward,  or  by  a  trustee  of  his  cestui  que  trust,  or  by  an 
attorney  of  his  client,  may  be  in  good  faith,  and  as  beneficial 
to  all  parties  as  any  other  transaction  in  life ;  and  yet  the 
inconvenience  and  danger  of  allowing  contracts  to  be  entered 
into  by  parties  holding  such  relations  to  each  other  are  so 
great  that  courts  of  equity  construe  such  contracts  prima  facie 
to  be  fraudulent,  and  they  construe  a  trust  to  arise  from  them. 
Third,  trusts  that  arise  from  some  equitable  principle  inde- 

1  Warner  v.  Daniels,  1  Wood.  &  M.  103;  Denton  v.  McKenzie,  1  Des. 


289. 


Fullager  v.  Clark,  18  Ves.  483  ;  Chesterfield  v.  Janssen,  2  Ves.  155. 
Cook  V.  Fountain,  3  Swanst.  555. 
2  Story's  Eq.  Jur.  §  1195 ;  Steele  v.  Kinkle,  3  Ala.  352. 
Post,  §  194. 
232 


CHAP,   YI.]  CONSTRUCTIVE   TRUSTS.  [§  169. 

pendent  of  the  existence  of  any  fraud  ;  as  where  an  estate  lias 
been  ])urchased,  and  the  consideration-money  i)aid,  Ijut  the 
deed  is  not  taken,  equity  will  raise  a  trust  by  construction  for 
the  purchaser. 

§  169.  No  certain  and  accurate  definition  or  description  of 
actual  fraud  can  be  given.  Courts  have  never  laid  down,  in  a 
general  prujxjsition,  what  does  and  what  does  not  constitute 
fraud,  nor  any  general  rule  by  which  they  are  controlled  in 
giving  relief,^  lest  other  means  of  committing  fraud  should  be 
resorted  to.  As  Lord  Hardwicke  said,  "fraud  is  infinite,  and 
were  courts  of  equity  once  to  lay  down  rules  how  far  they 
would  go  and  no  further,  in  extending  the  relief  against  it,  or 
to  define  strictly  the  species  or  evidence  of  it,  the  jurisdiction 
would  be  cramped,  and  perpetually  eluded  by  new  schemes 
which  the  fertility  of  man's  invention  would  contrive."  ^  Al- 
though it  is  difficult  to  give  a  definition  of  it,  yet  Mr.  Story 
said,^  that  "  fraud  in  the  sense  of  a  court  of  equity  properly 
includes  all  acts,  omissions,  and  concealments  which  involve 
a  Ijreach  of  legal  or  equitable  duty,  trust,  or  confidence,  justly 
reposed,  and  are  injurious  to  another,  or  by  which  an  undue 
and  unconscientious  advantage  is  taken  of  another.'*  And 
courts  of  equity  will  not  only  interfere,  in  cases  of  fraud,  to 
set  aside  acts  done,  but  they  will  also,  if  acts  have  by  fraud 
been  prevented  from  being  done  by  the  parties,  interfere  and 
treat  the  case  exactly  as  if  the  acts  had  been  done  "  ^  (a). 

1  Mortlock  V.  Duller,  10  Ves.  30f3. 

2  Parke's  Hist. of  Chan.  508  ;  Lawley  v.  Hooper,  3  Atk.  270  ;  1  Domat, 
Civil  Law,  B.  1,  tit.  18,  §  3,  art.  1. 

8  1  Story's  Eq.  Jur.  §  187. 

*  Chesterfield  v.  Jansssen,  2  Ves.  Sr.  155;  Gale  v.  Gale,  10  Barb.  251 ; 
1  Fonb.  Eq.  B.  1,  c.  2,  §  3,  note  (r). 

6  Middleton  v.  IMiddleton,  1  Jac.  &  W.  06  ;  Waltham's  Case,  cited  11 
Ves.  G38,  M  Ves.  200  ;  Devenish  v.  Baiues,  Br.  Ch.  4. 

(a)  Tn  Huxley  v.  Rice,  40  I^Iich.  is  obtained  for  ends  which  it  re- 
73,  82,  approved  in  Moore  v.  Craw-  gards  as  fraudulent,  or  under  cir- 
ford,  130  U.  S.  122,  128,  the  court  cumstances  it  considers  as  fraudu- 
said  :  "  It  is  the  settled  doctrine  of  lent  or  oppressive,  by  intent  or 
the  court  that  where  the  conveyance    immediate  consequence,  the   party 

233 


§  170.]  CONSTRUCTIVE  TKUSTS.         [CHAP.  VI. 

§  170.  Although  courts  of  equity  have  not  made  general 
definitions  stating  what  is  fraud  and  what  is  not,  they  have 
not  hesitated  to  lay  down  broad  and  comprehensive  principles 
of  remedial  justice,  and  to  apply  these  principles  in  favor  of 
innocent  parties  suffering  from  the  fraud  of  others.  These 
principles,  though  firm  and  inflexible,  are  yet  so  plastic, 
that  they  can  be  applied  to  every  case  of  fraud  as  it  occurs, 
however  new  it  may  be  in  its  circumstances.  The  leading 
principle  of  this  remedial  justice  is  by  way  of  equitable 
construction  to  convert  the  fraudulent  holder  of  property 
into  a  trustee,  and  to  preserve  the  property  itself  as  a  fund 
for  the  purpose  of  recompense.  In  investigating  allegations 
of  fraud,  courts  of  equity  disregard  mere  technicalities  and 
artificial  rules,  and  look  only  at  the  general  characteristics 
of  the  case,  and  go  at  once  to  its  essential  morality  and 
merit.  Thus  at  law  married  women  or  infants  are  not 
liable  upon  their  contracts,  nor  are  they  bound  by  their 
deeds,  receipts,  or  releases,  whether  made  bona  fide  or 
fraudulently  ;  ^  but  in  equity  if  a  married  woman  has  obtained 
property  by  fraud,  the  court  disregards  the  technical  rules 

1  People  V.  Kendall,  25  Wend.  390  ;  Burley  v.  Russell,  10  N.  H.  184 ; 
West  V.  Moore,  14  Vt.  447;  Conroe  v.  Birdsall,  1  Johns.  Cas.  127;  Price 
I'.  Hewitt,  8  Exch.  145. 

deriving  title  under  it  will  be  con-  nix   v.  Purcell,  46    Ohio   St.   102 

verted  into  a  trustee  in  case  that  Champlin  v.  Champlin,  130  111.  309 

construction  is  needful  for  the  pur-  Barber   v.  Barber,  146   Jnd.    390 

pose  of  administering  adequate  re-  Harris  v.  Daugherty,   74  Tex.    1 

lief ;  and  the  setting  up  of  the  statute  Shoufe  v.   Griffiths,  4  Wash.    161 

of  frauds  by  a  party  guilty  of  the  Riley  v.  Martinelli,  97  Cal.  575. 
fraud  or  misconduct,  in  order  to  bar  Estoppels  in  pais  are  not  affected 

the  court  from  effective  interference  by  the  statute  of  frauds.      Bell  v. 

with  his  wrongdoing,  will  not  hin-  Goodnature,  50  Minn.  417.     Hence, 

der  it  from  forcing  on  his  conscience  an   equitable   interest,  although   it 

this  character  as  a  means  to  baffle  cannot  be  transferred  by  parol,  may 

his   injustice  or  its  effects."      See  be   abandoned   or  released    to   the 

also  Hinton  I'.  Pritchard  (N.  C),  10  holder  of  the  legal  title  by  matter 

L.  R.  Ann.  401,  and  note  ;  Ward  v.  in  pais,  when  such  intention  of  the 

Ward,   59    Conn.    1 88 ;    Tanney  v.  parties   is   clearly  shown.     Gorrell 

Tanney,    159    Penn.    St.   277;    Mc-  v.  Alspaugh,   120  N.   C.  362,   368; 

Devitt  r.  Frantz,  85  Va.  922;  Man-  Engel's  Estate,  180  Penu.  St.  215. 
234 


CHAP.  VI.]     MISREPRESENTATION  AND  FRAUD.        [§  171. 

of  common  law  in  regard  to  married  women,  and  converts 
her  by  construction  into  a  trustee,  and  compels  her  to  do 
justice  by  executing  the  trust.  ^  The  same  principles  apply 
to  infants,  although  they  cannot  be  sued  at  common  law, 
save  in  a  few  exceptionable  cases.  So  if  an  infant  fraudu- 
lently misrepresents  his  age  and  gives  deeds  or  releases, 
u])on  which  others  act,  equity  will  not  allow  him  to  impeach 
such  deeds  on  account  of  his  minority.^  This  is  on  the 
ground  that  infants  and  married  women  shall  not  take 
advantage  of  the  rules  made  for  their  protection  to  i)erpetrate 
frauds  upon  innocent  persons,  but  that  they  shall  be  bound 
by  their  own  fraudulent  representations,  or  by  equitable 
estoppels,   like  other  persons. ^ 

§  171.  Fraud,  arising  from  facts  and  circumstances  of 
imposition,  presents  the  plainest  case  for  relief,^  for  it  comes 
within  what  is  called  the  suggestio  falsi.^  Wherever  by 
misrepresentation,  combination,  conspiracy,  oppression, 
intimidation,  surprise,  or  any  other  practice  at  variance 
with  honest,  fair  dealing,  one  is  deceived,  entrapped,  or 
surprised  into  a  conveyance  of  the  legal  title  to  his  property, 
by  deed  or  by  will,  courts  of  equity  will  not  allow  the 
fraudulent  grantee  to  avail  himself  of  the  transaction  to 
enjoy  the  beneficial  interest,  but  will  construe  him  to  be  a 
trustee,  and  will  order  him  to  account  upon  equitable  prin- 
ciples, and  to  make  a  reconveyance  of  the  property.^    Thus, 

1  Vaughan  v.  Vanderslegen,  2  Dr.  363;  Jones  v.  Kearney,  1  Dr.  &  W. 
167. 

2  Stoolfoos  V.  Jenkins,  12  S.  &  R.  399 ;  Wright  v.  Snow,  2  De  G.  &  S. 
321. 

8  Davis  V.  Fingle,  8  B.  Monr.  539;  Wright  v.  Arnold,  4  id.  643;  Hall 
V.  Tinimons,  2  Rich.  Eq.  120. 

*  Chesterfield  ;;.  Janssen,  2  Ves.  15.5  ;  Beegle  v.  Wentz.  .55  Penn.  St.  369. 

6  Evans  v.  Ricknell,  6  Ves.  173;  Jarvis  v.  Duke,  1  Vern.  20;  Brod- 
erick  v.  Broderick,  1  P.  Wms.  240;  Nevitt  v.  Gibson,  1  Freem.  Ch.  438; 
Bulkley  v.  Wilford,  2  CI.  &  Fin.  102. 

«  Tyler  v.  Black,  13  How.  231  ;  Boyce  v.  Grundy,  2  Pet.  210;  Smith  r. 
Richards,  13  Pet.  2G  ;  McAllister  i\  Barry,  2  Ilayw.  200  ;  Walker  r.  Dun- 
lop,  5  Hayw.  271 ;  Harris  v.  Williamson,  4  id.  121 ;  Stephenson  r.  Taylor, 
1  A.  K.  Marsh.  235;  Pitts  v.  Cottingham,  9  Porter,  075  ;  Lewis  v.  Mc- 

235 


§  171.]  CONSTEUCTIVE   TKUSTS.  [CHAP.   VI, 

where  one  buys  land  at  an  execution  sale,  or  sale  under  a 
trust  deed,  under  an  agreement  with  the  debtor  that  the 
latter  may  redeem,  the  purchaser  holds  in  trust ;  it  would  be 
a  fraud  to  allow  him  to  repudiate  the  contract,  ^  Mere 
declarations  and  admissions  of  the  party  to  be  charged 
accompanying  the  transfer  of  title  have  been  held  sufficient 
to  raise  a  trust,  ^  It  must  be  remembered,  in  connection 
with  these  cases,  that  although  they  are  placed  on  the  ground 
of  fraud,  the  doctrine  of  North  Carolina,  that  trusts  in  land 
may  be  created  by  parol,  probably  has  had  an  influence  in 
nearly  all  the  decisions.^  In  Pennsylvania,  an  agreement  to 
allow  redemption  is  held  to  be  within  the  statute  of  frauds, 
and  will  not  be  enforced  as  creating  a  constructive  trust.'* 
Equity  will  enforce  a  parol  promise  to  a  testator  by  a 
legatee  to  hold  the  legacy  for  the  benefit  partly  or  wholly 

Lemore,  10  Yerg.  206 ;  Speace  v.  Duren,  2  Ala.  251  ;  Harris  v.  Carter, 
3  Stew.  233 ;  How  v.  Weldon,  2  Ves.  517 ;  Neville  v.  Wilkinson,  1  Bro. 
Ch.  596 ;  Earl  of  Bath's  Case,  3  Ch.  Ca.  56;  Willan  v.  Willan,  16  Ves. 
82;  Say  V.  Barwich,  1  V.  &  B.  195;  Barnsley  v.  Powell,  1  Ves.  289; 
Mathew  v.  Haubury,  2  Vern.  187  ;  Bridgman  v.  Green,  2  Ves.  627  ;  Evans 
V.  Llewellyn,  1  Cox,  340 ;  Bennet  v.  Vade,  2  Atk.  324 ;  Mad.  Ch.  Pr.  342 ; 
Clermont  v.  Tasburgh,  IJ.  &  W.  112 ;  Dowd  v.  Tucker,  41  Conn.  198  ; 
Williams  v.  Vreelaud,  29  N.  J.  Eq.  417  ;  Church  v.  Ruland,  64  Penn.  St. 
432  ;  Rick's  App.,  105  id.  528;  Beach  v.  Dyer,  93  111.  295;  Long  v.  Fox, 
100  id.  43 ;  Brophy  v.  Lawler,  107  id.  284  ;  Henschel  v.  Mamero,  120  id. 
660  ;  Ludlow  v.  Flournoy,  34  Ark.  451.  A  trust  sale  may  be  set  aside 
when  oppressive  to  the  knowledge  of  the  purchaser.  Littell  v.  Grady, 
38  Ark.  584.  But  no  mere  verbal  understanding  between  testator  and 
the  legatee  as  to  the  final  disposition  of  property  bequeathed  will  create  a 
trust.      AUman  v.  Pigg,  82  111.  149. 

1  Mulholland  v.  York,  82  N.  C.  510  ;  Tankard  v.  Tankard,  84  id.  286  ; 
McNair  v.  Pope,  100  id.  408.  See  also  Turner  v.  King,  2  Ired.  Eq.  132  ; 
Vannoy  v.  Martin,  id.  169  ;  Vestal  v.  Sloan,  76  N.  C.  127 ;  McLeod  v. 
Bullard,  84  id.  515 ;  Cheek  v.  W^atson,  85  id.  195 ;  Gidney  v.  Moore,  86 
id.  484;  McKee  v.  Vail,  79  id.  194,  declares  such  a  contract  void  when 
not  in  writing;  but  in  82  N.  C.  510,  supra,  this  case  was  distinguished  on 
the  ground  that  there  was  no  relation  of  confidence  or  equitable  element 
in  the  agreement  in  that  case. 

2  Smiley  r.  Pearce,  98  N.  C.  185. 

3  See  §  75. 

4  Salsbury  v.  Black,  119  Penn.  St.  200;  Kimmel  v.  Smith,  117  id.  183, 
and  cases  cited. 

236 


CHAP.    VI.]  MISREPRESENTATION    AND    FRAUD. 


[§  171. 


of  another,  in  consideration  of  wliich  promise  the  testator 
for  the  benefit  of  such  third  person  makes  the  bequest  to  the 
promisor.  It  w(niM  be  a  fraud  for  the  legatee  to  retain  the 
property  for  his  own  benefit.^  (a)  Even  silent  acquiescence 
encouraging  a  testator  to  make  a  will  with  a  declared 
expectation  that  lie  will  apply  it  for  the  benefit  of  others, 
has  been  held  to  have  the  force  of  an  express  promise. ^  A 
parol  ])roraise  on  consideration  of  which  a  deed  was  made 
will  be  enforced  in  equity.^  {b)     Where  the  devisee,  under  a 

1  Vreeland  v.  Williams,  32  N.  J.  Eq.  734.  See  Socher's  App.,  104 
Penn.  St.  609. 

2  Laytiu  v.  Davidson,  95  N.  Y.  263. 

*  Clark  V.  Haney,  02  Tex.  511  ;  Lott  v.  Kaiser,  61  id.  665. 

(a)  The  statute  of  wills  doos  not  College  v.  Ritch,  151  N.  Y.  282; 
prevent  a  parol  trust  being  engrafted  Buckingham  t'.  Clark,  61  Conn.  204; 
upon  a  devise  or  bequest  after  the     Gilpatrick   v.    Glidden,    81    Maine, 


probate  of  the  will,  at  least  with 
respect  to  personalty.  IMoore  v. 
Campbell,  102  Ala.  445;  113  Ala. 
587  ;  Hamilton  v.  Hall,  111  Mich. 
291 ;  Moran  v.  Moran,  104  Iowa,  216; 
Clarke  v.  Clarke,  46  S.  C.  230.     See 


137;  Grant  r.  Bradstreet,  87  Maine, 
583  ;  Hodnett's  Estate,  154  Penn. 
St.  485.  This  applies  to  the  will  of 
a  wife  made  at  her  husband's  insti- 
gation upon  his  promise  to  hold  the 
property  for  their  children.    Larmon 


conlra,   Amherst   College   v.   Ritch,  v.  Knight,  140  111.  232. 
151  N.  Y.  282  ;  Fairchild  v.  Edson,  The  fact  that  a  will,  in  creating 

154    N.  Y.   199.      When,  however,  a  trust,  gives  permission  to  the  trus- 

the  depositor  in  a  savings  bank  re-  tee   to   apply   such   portion  of   the 

tains  control  of  the  fund,  both  prin-  trust  fund  to  his  personal  use  as  he 

cipal  and  interest,  during  his  life,  may  find  necessary,  without  account- 

and  intends  that  no   interest  in  it  ing  therefor,  does  not  abolish  the 

shall  pass  until  after  his  death,  the  trust.     Jones  v.  Newell,   78   Hun, 

transaction  is  in  the  nature  of  a  tes-  290. 


tanientary  deposition,  and  is  void  as 
evading  the  statute  of  wills.  Nutt 
V.  Morse,  142  INIass.  1 ;  Zeller  v. 
Jordan,  105  Cal.  143. 

If  a  testator  is  induced  to  make 
a  bequest  by  the  express  or  implied 
promise  of  the  legatee  that  he  will 


(I/)  When  a  person  who  occupies 
a  fiduciary  relation  to  the  owner  of 
real  estate  takes  advantage  of  the 
confidence  thus  reposed  in  him  to 
acquire  an  absolute  conveyance 
thereof,  without  consideration, 
through  a  verbal  agreement  of  trust, 


devote  tiie  legacy  to  a  certain  la\v-  which  he  promises  to  place  in  writ- 
ful  purpose,  a  secret  trust  is  created,  ing,  and  he  refuses  to  so  reduce  it 
and  equity  will  require  the  legatee  to  writing,  or  to  reconvey  the  land 
to  fulfil  his  promise.  OTIara  v.  to  the  real  owner,  a  court  of  equity 
Dudley,   95   N.    Y.   403 ;    Amherst    has  power  to  set  aside  the  convey- 

237 


§  171.]  CONSTRUCTIVE   TKUSTS/  [CHAP.   VI. 

will  defectively  executed,  obtained  a  conveyance  of  the 
estate  from  the  heir-at-law  by  representing  that  the  will  was 
duly  executed/  or  where  an  executor  obtained  a  release  of  a 
legacy  by  representing  that  there  was  no  legacy  given  by 
the  will, 2  or  where  a  purchaser  misrepresented  the  quantity 
and  quality  of  the  land  he  was  about  to  purchase,^  or  where 
the  vendor  misrepresented  the  quantity  of  land  in  a  tract 
sold,  as  twenty  acres  overflowed  by  a  river,  when  in  fact  it 
was  more  than  a  hundred  acres,*  or  where  a  husband  and 
wife  conveyed  land  to  A.  on  no  consideration  but  his  promise 
to  reconvey  it  to  the  wife,  and  A.  's  prior  creditors  attached 
the  land,^  the  court  gave  relief.  If  one  is  induced  by  fraud 
to  take  in  the  name  of  another  a  conveyance  of  land  he  buys, 
he  may  elect  to  treat  the  transaction  as  creating  a  trust  for 
him;  but  if  he  does  not  so  elect,  his  heirs  cannot  do  so,  for 
no  estate  vested  in  him  to  pass  by  descent.^  In  Smith  v. 
Richards,'^  the  Supreme  Court  of  the  United  States  cited  the 
following  proposition^  with  approval:  "Where  a  party 
intentionally  or  by  design  misrepresents  a  material  fact,  or 
produces  a  false  impression^  in  order  to  mislead  another, ^"^  or 
to  entrap  or  cheat  him,  or  to  obtain  an  undue  advantage  of 
him,  —  in  every  such  case  there  is  positive  fraud  in  the 

1  Broderick  v.  Broderick,  1  P.  Wms.  239, 

2  Jarvis  v.  Duke,  1  Vern.  19 ;  Murray  v.  Paltuer,  18  Sch.  &  L.  474 ; 
Jaraes  v.  Greaves,  2  P.  Wms.  270  ;  Horseley  v.  Chaloner,  2  Ves.  83. 

3  Tyler  v.  Black,  13  How.  231. 

4  Boyce  v.  Grundy,  3  Pet.  210.     See  Prescott  v.  "Wright,  4  Gray,  461. 
But  see  Bartlett  v.  Salmon,  6  De  G.,  M.  &  G.  40. 

5  Cox  V.  Arnsmann,  76  Ind.  210. 

^  Cooper  V.  Cockrum,  87  Ind.  443. 
'  13  Pet.  36. 

8  1  Story's  Eq.  Jur.  §§  192.  193. 

9  Laidlaw  i'.  Organ,  2  Wheat.  195;  Pidcoek  r.  Bishop,  3  B.  &Cr.  605; 
Smith  V.  Bank  of  Scotland,  1  Dow,  72 ;  Evans  v.  Bicknell,  6  Yes.  173. 

10  State  V.  Holloway,  8  Blackf.  45. 

ance,  or  to  give  other  proper  relief,  be   converted  into  a  trust  by  any 
Bohm  V.  Bohm,  9  Col.  100;  Jerome  oral  declaration  of  the  parties  there- 
in. Bohm,  21   Col.   322  ;  see  sxipra,  to.      Moore  v.  Hamerstag,  109  Cal. 
§   137.      An    absolute   conveyance  122 ;  supra,  §  77. 
cannot,  however,  after  its  execution, 
238 


CHAP.  VI.]     MISUErRESENTATION  AND  FRAUD.        [^   171. 

truest  sense  of  the  term;^  there  is  an  evil  act,  with  an  evil 
intent;  dolum  malum,  ad  circumveniendum.  And  the  mis- 
representation may  as  well  l)e  by  acts  as  words,  by  artifices 
that  mislead 2  as  by  positive  assertions."^  Lord  Thiirlow 
said,  "  it  would  be  ridiculous  for  the  court  to  malce  a  dis- 
tinction between  the  two  cases. "^  "Whether  the  party 
thus  representing  a  fact  knew  it  to  be  false  or  made  the 
assertion  without  knowing  whether  it  was  true  or  false  is 
wholly  immaterial;'^  for  the  allirmation  of  what  one  does  not 
know  or  believe  to  be  true  is,  equally  in  morals  and  law,  as 
unjusti(ial)le  as  the  afilrmation  of  what  is  known  to  be  posi- 
tively false.^  And  even  if  a  party  innocently  misrepresent 
a  fact  by  mistake,  it  is  equally  conclusive ;  for  it  operates  as 
a  surprise  and  imposition  on  the  other  party."  Or,  as  Lord 
Thurlow  expresses  it,  it  misleads  the  parties  contracting  on 

1  Atwood  V.  Small,  6  CI.  &  Fin.  232 ;  1  Youuge,  407  ;  Taylor  v.  Ash- 
ton,  11  Mee.  &  W.  401 ;  Warner  v.  Daniel,  1  Wood.  &  M.  103  ;  Torrey  v. 
Buck,  1  Green,  Ch.  366 ;  Jarvis  v.  Duke,  1  Vern.  19 ;  Broderick  v.  Brod- 
erick,  1  P.  Wnis.  239. 

2  Chisholm  v.  Gad.sden,  1  Strobh.  220;  Huguenin  v.  Baseley,  14  Ves 
273  ;  State  v.  Holloway,  8  Blackf.  45. 

8  Ibid.;  Laidlaw  v.  Organ,  2  Wheat.  195  ;  Smith  v.  Bank  of  Scot- 
land, 1  Dow,  272;  2  Kent,  484  ;  Chesterfield  v.  Janssen,  2  Ves.  155; 
Neville  v.  Wilkinson,  1  Bio.  Ch.  546. 

*  Neville  r.  Wilkinson,  1  Bro.  Ch.  546. 

*  Wright  V.  Snow,  2  De  G.  &  Sm.  321. 

8  Ainslie  v.  INIedlycott,  9  Ves.  21  ;  Graves  v.  White,  Freem.  57 ;  Pear- 
son V.  Morgan,  2  Bro.  Ch.  3S9 ;  Foster  v.  Charles,  6  Bing.  396  ;  7  Bing. 
105  ;  Taylor  v.  Ashton,  11  l\Iee.  &  W.  401 ;  Smith  v.  Mitchell,  6  Ga.  458; 
Hazard  v.  Irwin,  18  Pick.  85  ;  l)o?gett  v.  Emerson,  3  Story,  733;  Hough 
V.  Richard.son,  id.  691  :  INIason  v.  Crosby,  1  Wood.  &  :M.  352  ;  Smith  v. 
Babcock,  2  id.  246  ;  Ilammatt  v.  Emerson,  27  Maine,  308. 

■^  Ibid. ;  Pearson  v.  Morgan,  2  Bro.  Ch.  389  ;  Burrows  v.  Locke,  10 
Ves.  475;  De  Manville  v.  Compton,  1  Ves.  &  B.  355  ;  Ex  parte  Carr,  3 
Ves.  &  B.  Ill;  Carpenter  v.  Am.  Ins.  Co.,  1  Story,  57;  Tayman  v. 
Mitchell,  1  Md.  Ch.  Dec.  496;  Pratt  v.  Philbrook,  33  Maine,  17;  Hard- 
ing V.  Randall,  15  id.  332;  Rosevelt  r.  Fulton,  2  Cow.  129;  Champlin 
V.  Laytin,  6  Paige,  189 ;  Reese  v.  Wyman,  9  Ga.  439  ;  Reynell  v.  Sprje, 
8  Hare,  222;  Lewis  v.  McLemore,  11  Yerg.  206;  Thomas  r.  McCann, 
4  B.  Mon.  601  ;  Hunt  v.  Moore,  2  Barr,  105;  Joice  v.  Taylor,  6  G.  &  J. 
54;  Lockridge  v.  Foster,  4  Scam.  570  ;  Turnbull  v.  Gadsden,  2  Strobh. 
Eq.  14. 

239 


§  172.]  CONSTRUCTIVE    TRUSTS.  [CHAP.    VI. 

the  subject-matter."  ^  There  may  also  be  fraud  upon  a  third 
person  not  a  party  to  the  immediate  conveyance  that  will 
raise  a  trust;  for  example,  a  purchaser  knowing  of  a  prior 
deed  to  A.  holds  in  trust  for  A.'-^  There  is  a  distinction 
between  cases  of  fraud  in  which  equity  will  set  aside  the 
sale  altogether,  and  those  cases  in  which  it  will  allow  the 
sale  to  stand,  and  hold  the  purchaser  as  a  trustee.  A  trust 
will  not  be  declared,  if  thereby  in  effect  the  beneficiary 
would  receive  the  benefit  of  the  fraud  at  the  expense  of  a 
third  person  equally  innocent.^ 

§  172.  If  a  person  purchasing  an  estate  falsely  pretends 
and  represents  that  he  is  purchasing  or  acting  as  agent  for 
another,  when  in  fact  he  is  purchasing  for  himself,  and  such 
misrepresentation  misleads  and  throws  the  vendor  off  his 
guard,  and  the  purchaser  makes  a  better  bargain  than  he 
otherwise  could,  or  the  representation  is  in  any  way  mate- 
rial, equity  will  not  enforce  the  agreement,  or,  if  it  is 
already  executed,  will  convert  the  purchaser  into  a  trustee.* 
And  so  if  a  purchaser  at  auction  or  otherwise  represents  that 
he  is  purchasing  or  bidding  for  some  other  person,  as  for  the 
debtor  in  a  sale  under  an  execution,^  or  for  the  mortgagor  in 
a  sale  under  a  foreclosure,  or  for  the  family  under  an  execu- 
tor's or  administrator's  sale,  and  competition  is  thus  pre- 
vented and  the  purchase  is  made  on  his  own  terms,  equity 
will  decree  that  such  person  shall  be  a  trustee  for  the 
person  for  whom  he  represented  that  he  was  acting.  So  if 
a  purchaser  by  fraud  prevents  other  purchasers  from  attend- 

1  Neville  v.  Wilkinson,  1  Bro.  Ch.  546. 

2  Cannon  v.  Handley,  72  Cal.  133  ;  see  §  212. 
8  Hudson  V.  Morris,  55  Tex.  605. 

*  Phillips  V.  Bucks,  1  Vern.  227  and  notes;  Fellowes  v.  Gwydyr, 
1  Sim.  63 ;  1  R.  &  M.  83.  But  a  mere  mistake  of  parties  will  not  avoid 
a  lease.     Stiner  v.  Stiner,  58  Barb.  643. 

6  Peebles  v.  Reading,  8  Ser.  &  R.  484  ;  Gilmore  v.  Johnson,  29  Ga.  67; 
Belcher  v.  Saunders,  34  Ala.  9 ;  Roller  v.  Spilmore,  13  Wis.  26 ;  Arnold 
V.  Cord,  16  Ind.  176 ;  Northcote  v.  Martin,  28  Miss.  469 ;  Soggins  v. 
Heard,  31  Miss.  426  ;  Pearson  v.  East,  36  Md.  28  ;  Minot  v.  Mitchell,  30 
Ind.  228. 

240 


CILVr.    VI.]  MISREPKKSENTATION    AND   FKAUD.  [§  172. 

ing  a  sale,^  or  if  a  purcliascr  fraudulently  agrees  that  lie  will 
purchase  an  estate  in  his  own  behalf  and  that  of  another,  in 
order  to  prevent  competition,  and  gets  the  property  into  his 
own  name,  at  a  less  price,  he  will  be  a  trustee  for  the  person 
defrauded. 2  On  the  other  hand,  where  an  agent  makes  a 
fraudulent  representation,  or  docs  a  fraudulent  act,  in  a  pur- 
chase or  sale,  with  or  without  the  privity  or  knowledge  or 
consent  of  his  principal,  and  the  principal  adopts  the  bargain 
and  attempts  to  reaj)  an  advantage  from  it  so  tainted  by  the 
fraud  of  the  agent,  he  will  be  held  bound  by  the  fraud  of  the 
agent,  and  relief  will  be  given.^  Indeed,  the  doctrine  has 
been  thus  l)roadly  stated:  "That  where  once  a  fraud  has 
been  committed,  not  only  is  the  person  who  committed  the 
fraud  precluded  from  deriving  any  benefit  from  it,  but  every 
innocent  person  is  so  likewise,  unless  he  has  innocently 
acquired  a  subsequent  interest;  for  a  third  person,  by  seek- 
ing to  derive  any  benefit  under  such  a  transaction,  or  to 
retain  any  benefit  resulting  therefrom,  becomes  particeps 
criminis,  however  innocent  of  the  fraud  in  the  beginning."* 
And  the  same  rule  applies  with  more  force  to  misrepresenta- 
tions made  by  one  of  several  partners.^  But  if  the  agree- 
ment is  a  fair  one  between  the  parties,  it  will  not  be  affected 

1  Martin  v.  Blight,  4  J.  J.  Marsh.  401  ;  Rives  v.  Lawrence,  4  Ga.  2S3; 
Beegle  v.  Wentz,  55  Penn.  St.  3G9  ;  Eoynton  v.  Housler,  73  id.  453  ■ 
"Wolford  V.  Ilerrington,  74  id.  311. 

2  McCulloch  V.  Cowher,  5  Watts  &  S.  427 ;  Ferguson  v.  Williamson, 
20  Ark.  272 ;  Owson  v.  Cown,  22  IMiss.  329. 

8  Ferson  v.  Sanger,  1  Wood.  &  M.  147  ;  Warner  r.  Daniels,  id.  90 ; 
Kibbe  ».  Hamilton  Ins.  Co.,  11  Gray,  163;  Brooke  v.  Berry,  2  Gill,  83; 
Fitzsimmous  v.  Joslin,  21  Vt.  12.')  ;  Fuller  v.  Wilson,  3  Ad.  &'  El.' 
(n.  s.)  58.  See  also  Cornfoot  v.  Fowke,  G  M.  &  W.  358;  National  Ex- 
change Co.  V.  Drew,  2  Macq.  103  ;  Sugd.  144,  V.  &  P.  718 ;  Gentry  v. 
Law,  4  Nev.  97. 

4  Ilortopp  V.  Ilortopp,  21  Beav.  259 ;  Scholefield  v.  Templar,  John. 
155  ;  Cassard  v.  Ilinman,  6  Bosw.  9  ;  Wilde  r.  Gibson,  1  IT.  L.  Cas.  605; 
Elwell  I'.  Chamberlain,  31  X.  Y.  019  ;  Bennett  v.  Judson,  21  N.  Y.  238; 
Buford  V.  Caldwell,  3  Mo.  477 ;  Thomas  v.  l\IcCaun,  4  B.  Jfon.  601  \ 
Perhani  v.  Randolph,  4  IIow.  (Miss.)  435  ;  Stone  v.  Denny,  4  Met.  101 ; 
Gentry  v.  Law,  4  Nev.  97. 

6  Blair  v.  Bromley,  2  Phill.  239,  354. 
VOL.  I.  —  IG  9  ^ .. 


§  173.J  CONSTRUCTIVE   TRUSTS.  [CIIAP.    YI. 

because  brought  about  by  the  fraud  of  some  third  person  for 
his  collateral  benefit.^  And  if  the  agreement  is  not  a  fair 
one,  it  will  not  be  invalidated  by  the  fraudulent  representa- 
tions of  a  third  person  in  no  way  connected  with  either 
party, ^  unless  the  circumstances  are  such  that  the  bargain 
may  be  said  to  have  been  entered  into  by  mistake.^ 

§  173.  However  repugnant  to  entire  good  faith  and  sound 
morals  any  misrepresentation  upon  any  subject,  however 
made,  may  be,  courts  of  justice  cannot  undertake  to  sit  as 
censors  upon  mere  morals.  There  are  in  every  community 
two  classes  of  rights,  — perfect  rights,  and  imperfect  rights. 
Perfect  rights  are  those  that  may  be  enforced,  or  for  the 
breach  of  which  damages  may  be  recovered ;  imperfect 
rights  are  those  which  are  conceded  to  every  man,  but  which 
cannot  be  enforced  by  human  tribunals,  and  for  the  breach 
of  which  no  damages  can  be  recovered.  Thus  every  man 
has  a  right  to  the  utmost  good  faith,  and  the  most  perfect 
frankness  and  truthfulness  in  all  the  transactions  of  busi- 
ness; but  courts  of  justice  would  be  utterly  powerless  to 
enforce  such  a  standard  of  morality.  They  would  have 
neither  the  time  nor  the  means  of  investigating  the  in- 
numerable arts  of  buyers  and  sellers.  And  so  courts  have 
been  obliged  to  lay  down  certain  practical  rules  and  limita- 
tions upon  the  subject  of  misrepresentation.  Thus  the  mis- 
representation must  generally  be  of  facts,  or  matters  of  fact, 
and  not  of  mere  matters  of  expectation  or  opinion,*  as  if  one 
should  represent  that  an  estate  contained  a  valuable  mine, 
when  in  fact  no  mine  existed,^  or  that  an  estate  contained 
only  two  or  three  hundred  acres,  when  in  fact  it  contained 
over  twelve  hundred  acres,  or  that  there  was  no  timber  upon 

1  Bellamy  v.  Sabine,  2  Phill.  425;  Blackie  v.  Clarke,  15  Beav.  595. 

2  Fisher  v.  Boody,  1  Curtis,  206  ;  Beach  v.  Dyer,  93  III.  295. 

8  Ibid.  And  it  must  be  a  fraud  at  the  time  of  the  purchase,  not  after- 
wards.    AATieeler  v.  Reynolds,  67  N.  Y.  227. 

4  Fer.son  v.  Sanger,  1  Wood.  &  M.  146 ;  Warner  v.  Daniels,  id.  98 ; 
Rush  V.  Yought,  55  Penn.  St.  437. 

5  Lowndes  v.  Lane,  2  Cox,  363. 

242 


CHAP.   VI.]  MISREPRESENTATION   AND   FRAUD.  [§  173. 

it,  Avhcn  there  was  a  large  amount  of  valuable  timber,'  or 
the  seller  should  falsely  represent  that  the  custom  of  a 
puhlic-liousc  was  a  certain  sum  monthly,^  or  that  an  estate 
was  situate  in  one  locality  or  county,  when  it  was  situate  in 
another,^  or  that  stocks  were  selling  for  such  a  sum  in  the 
market,  when  they  were  worthless,*  or  that  a  third  person 
has  paid  a  certain  sum  for  the  same  property,^  or  that  it 
rents  for  so  much.^  in  these  and  similar  cases  the  misrep- 
resentation is  of  facts  that  go  to  the  merits  of  the  contract, 
and  avoid  it,  if  false.  But  if  the  representation  is  to  the 
value,  which  is  matter  of  opinion,  it  will  not  in  general 
avoid  the  contract,  as  where  the  affirmation  is  that  the 
estate  is  worth  so  much;  or  even  if  the  representation  is 
stronger,  as  that  so  much  was  given  for  it,  or  that  so  much 
has  been  offered  or  refused."  Any  person  M'ho  confides  in  or 
is  cheated  by  such  representations  is  considered  too  careless 
of  his  own  interests  to  invoke  the  interposition  of  courts.^ 
A  misrepresentation,  however,  of  a  mere  matter  of  opinion 
may  avoid  a  contract,  or  convert  the  fraudulent  party  into  a 
trustee,  where  the  other  party  is  known  to  place  confidence 
in  the  opinions  and  judgment  of  the  person  with  whom  he  is 
dealing,  or  where  the  relations  between  the  parties  are  of  a 
confidential  and  fiduciary  character,  or  where  one  party  has 
peculiar  or  exclusive  means  of  acquiring  proper  information 

1  Tyler  v.  Black.  13  ITow.  230. 

2  Pilmore  v.  Hood,  0  Scott,  827. 

8  Re.^^t  V.  Stow,  2  Sandf .  Ch.  298  ;  Bennett  v.  Judson,  21  N.  Y.  238. 

*  IManning  v.  Albee,  11  Allen,  522.  See  Warner  v.  Daniels,  1  Wood. 
&  M.  102. 

6  Medbury  w.  Watson,  6  Met.  259. 

6  Elkins  V.  Tresham,  1  Sev.  102  ;  1  Sid.  146. 

■f  Hepburn  v.  Diinlop,  1  Wheat.  189  ;  Irvine  v.  Kirkpatrick,  3  Eng.  L. 
&  Eq.  17;  Medbury  i'.  Watson,  6  I^Iet.  259  ;  Bacon  v  Bronson,  7  John. 
Ch.  144  ;  Stone  v.  Denny,  4  Met.  151  ;  Small  v.  Atwood,  3  Younge 
Exch.  407;  Veasey  v.  Doton,  3  Allen,  351 ;  Hemmer  v.  Cooper,  8  Allen, 
334;  Best  r.  Blackburn,  6  Litt.  51;  Speiglemyer  v.  Crawfort,  6  Paige, 
254. 

8  :Manning  v.  Albee,  11  Allen,  522;  2  Kent,  484,485  ;  Vernon  v.  Keys, 
12  East,  632;  Hough  v.  Richardson,  3  Story,  G96;  Jenkins  v.  Eldredge, 
id.  LSI. 

243 


§  174.]  CONSTRUCTIVE    TRUSTS.  [CHAP.    VI. 

upon  which  to  form  a  judgment  or  opinion,'  or  where  the 
representations  are  such  that  one  party  is  induced  to  rely 
upon  the  opinions  of  the  other. "-^ 

§  174.  Again,  the  misrepresentation  must  be  of  some 
fact  material  to  the  contract,  or  of  something  that  goes  to 
its  essence;^  as  if  an  estate  is  represented  to  contain  one 
thousand  acres,  and  it  contains  nine  hundred  and  ninety- 
nine  acres,*  or  if  the  age  of  an  article  is  represented  to  be 
ten  years,  and  it  is  a  few  months  more  or  less,^  or  a  thing  is 
represented  to  have  been  purchased  in  one  place  and  it  is  in 
fact  purchased  at  another,^  or  if  a  spring  of  water  is  repre- 
sented to  be  upon  a  given  tract  of  land,  when  in  fact  it  is 
not:'^  in  all  these  matters  the  facts  represented  are  too 
trifling  or  collateral  to  be  material,  and  no  relief  would  be 
granted.  Yet,  if  the  leading  motive  of  the  purchase  of  an 
estate  was  known  to  be  material,  relief  would  be  granted. 
As,  if  the  leading  motive  of  the  purchase  of  an  estate  was 
known  to  be  the  purpose  of  acquiring  a  spring  of  water,  then 
a  fraudulent  misrepresentation  as  to  the  locality  of  the 
spring  would  become  material  to  the  contract;  or  if  the 
vendor  should  fraudulently  point  out  the  boundary  lines,  so 
as  to  take  in  the  spring,  or  more  land  than  belonged  to  him, 
the  contract  would  be  avoided.^  But  if  the  boundaries  are 
properly  pointed  out,  a  misrepresentation  as  to  the  number 
of  acres  in  a  farm  is  not  material.^ 

1  Sheoflfer  v.  Sleade,  7  Blackf.  178;  Hill  v.  Gray,  1  Starkie,  352; 
Keates  v.  Cadogan,  2  Eng.  L.  &  Eq.  321. 

2  Reynell  /•.  Sprye,  8  Hare,  222  ;  1  De  G.,  M.  &  G.  660. 

3  Phillips  V.  Bucks,  1  Vera.  227  ;  Hough  r.  Richardson,  3  Story,  659  ; 
TurnbuU  v.  Gadsden,  2  Strobh.  Eq.  14;  Morris  Canal  v.  Emmett,  9  Paige, 
186  ;  Clark  v.  Everhart,  63  Peun.  St.  347. 

4  Ibid.  ;  Stebbins  v.  Eddy,  4  Mason,  414 ;  Winston  v.  Gwathmey,  8  B. 
Mon.  19 ;  Winch  v.  Winchester,  1  Ves.  &  B.  375 ;  Ingpont  v.  Worcup, 
Finch,  310.  ^  Geddes  v.  Pennington,  5  Dow,  159. 

6  Ibid. 

■^  Winston  v.  Gwathmey,  8  B.  Mon.  19. 
8  Elliott  V.  Boaz,  9  Ala.  772. 

®  Stebbins  v.  Eddy,  4  Mason,  414  ;  Morris  Canal  v.  Emmett,  9  Paige, 
168. 

244 


CHAP.   VI.]  MISREPRESENTATIONS.  [§  176. 

§  175.  The  misrepresentation  must  also  be  of  something 
peculiarly  within  the  knowledge  of  one  of  the  parties,  or  the 
facts  must  be  of  such  a  nature  that  both  parties  cannot 
easily  obtain  the  information.  Thus,  if  both  parties  have 
the  same  means  of  information,  as  if  both  parties  go  upon  a 
tract  of  land  and  have  equal  means  of  judging  of  the  quantity 
of  timber  upon  it,'  or  if  representations  are  made  of  town 
lots  and  the  future  prospects  of  the  town,  and  the  facts  are 
equally  oi)cn  to  both  parties  upon  inquiry,^  or  if  there  is  a 
misrepresentation  of  title,  and  the  facts  are  equally  acces- 
sible to  both  parties,^  or  generally,  if  both  parties  have 
the  same  information,  or  an  equal  opportunity  to  obtain  the 
same  information,  there  cannot  Ijc  such  a  fraud,  arising  from 
such  a  misrepresentation  as  will  convert  one  of  the  parties 
into  a  trustee.^  So  if  there  are  fraudulent  misrepresenta- 
tions sufficient  to  avoid  the  contract,  and  the  innocent  party 
obtains  a  knowledge  of  all  the  facts  before  completing  the 
contract,  he  can  have  no  relief.^  And  so  if  the  misrepre- 
sentations, though  fraudulent,  are  so  vague  and  uncertain 
that  they  ought  not  to  mislead  a  reasonable  man,  but  should 
rather  put  him  upon  inquiry,  he  can  have  no  relief.® 

§  176.  The  action  of  courts  in  cases  of  alleged  fraud  will 
frequently  depend  upon  the  form  in  which  the  matter  is 
brought  before  them,  and  upon  the  relief  sought  in  the  pro- 
ceedings. Thus  a  bill  may  be  brought  by  a  party  for  the 
specific  performance  of  a  contract  which  he  holds,  or  a  bill 
may  be  brought  by  a  party  to  set  aside  the  contract,  or  con- 
vert the  opposite  party  who  holds  under  the  contract  into  a 
trustee,  or  a  suit  may  be  brought  by  a  party  at  common  law 

1  Hough  V.  Richardson,  3  Story,  659  ;  Tindall  v.  Harkiuson,  19  Ga. 
448. 

2  Bell  !•.  Henderson,  6  IIow.  (Miss.)  311. 

8  Glasscock  v.  Minor,  11  Mo.  655;  Juzan  v.  Toulrain,  9  Ala.  662. 

*  Ilobbs  V.  Parker,  31  Maine,  143 ;  Hutchinson  v.  Brown,  1  Clark, 
408. 

6  Yeatcs  v.  Prior,  6  Eng.  68;  KnuckoUs  v.  Lea,  10  Humph.  577; 
Pratt  V.  Pliilbrook,  33  Maine,  17. 

^  Hough  V.  Richardson,  3  Story,  659. 

245 


§  176.]  CONSTRUCTIVE  TRUSTS.         [CHAP.  VI. 

to  recover  damages  for  the  breach  of  the  same  contract.  It 
docs  not  follow,  because  a  court  of  equity  would  refuse  to 
decree  the  specific  performance  of  a  contract,  that  it  would 
also,  on  a  proper  bill,  decree  the  contract  to  be  set  aside,  or 
that  it  would  order  the  party  claiming  under  it  to  be  a 
trustee  for  the  other  party.  ^  And  so  if  a  party  comes  into 
a  court  of  equity  to  ask  that  an  agreement  which  he  holds 
may  be  specifically  performed  by  the  opposite  party,  he  must 
come  with  clean  hands,  as  it  is  said.  There  must  not  be 
any  fraud,  misrepresentation,  or  concealment  on  his  part  in 
procuring  the  contract;  or,  still  stronger,  there  must  not  be 
a  suspicion  of  concealment,  misrepresentation,  fraud,  or 
unfairness  adhering  to  him.  And  even  further,  if  the  bar- 
gain imposes  great  hardship  on  the  defendant,  or  is  made 
under  any  misapprehension  or  mistake,  or  unadvisedly, 
courts  of  equity  will  decline  to  interfere  actively  in  decree- 
ing a  specific  execution  of  the  agreement,  but  will  leave  the 
parties  to  their  rights  at  law.^  It  will  be  seen  from  this  that 
it  requires  much  less  evidence  of  fraud  to  enable  a  defendant 
to  resist  the  specific  performance  of  an  agreement,  than  it 
requires  to  enable  him  to  succeed  as  a  plaintiff  in  a  bill  to 
set  aside  the  same  contract. ^  In  the  case  last  named  he 
must  establish  the  fraud  affirmatively,  by  proof  of  the  facts 
and  circumstances,  to  the  reasonable  satisfaction  of  the  court. 
And  there  may  be  such  a  case  that  the  court  would  refuse  to 
set  aside  a  contract  on  the  one  side,  because  the  evidence  of 
fraud  was  insufficient  to  set  the  court  in  motion ;  and  on  the 
other  side  it  would  refuse  to  decree  a  specific  performance, 
because  the  circumstances  were  too  suspicious  to  allow  it 
actively  to  interfere  for  the  other  party.  In  such  case  the 
parties  would  be  left  to  an  action  at  common  law  upon  the 
agreements  with  such  rights  as  they  may  have  in  a  common- 
law  suit.^ 

1  1  Story's  Eq.  Jur.  §  693. 

2  Savage  v.  Brocksopp,  18  Ves.  335  ;  Cadman  v.  Horner,  id.  12 ;  Cler- 
mont V.  Tasburg,  1  Jac.  &  W.  112 ;  Wall  v.  Stubbs,  1  Madd.  80 ;  Mort- 
lock  V.  Buller,  10  Yes.  292. 

^  Ibid. ;  Townshend  v.  Stangroom,  6  Ves.  328  n.  ;  Lowndes  v.  Lane, 
2  Cox,  363.  4  Story's  Eq.  Jur.  §  G93. 

246 


CIIAI'.    VI.]  CONCEALMENT.  [§  177. 

§  177.  Tlic  rules  that  ai)i)ly  to  affirmative  acts  or  repre- 
sentations which  mislead,  deceive,  and  defraud,  are  of 
comparatively  easy  application  in  most  cases.  A  single 
affirmative  word  ui)on  a  material  matter  tending  to  mislead, 
and  actually  misleading,  is  enough  to  establish  fraud. ^  (a) 
It  is  tiie  sii(/(/e8tio  falsi  wiiieh  may  be  defined  to  be  a  false 
affirmation,  in  whatever  form  it  may  be  made,  whether  by 
words  or  acts,  of  a  material  fact,  rightfully  acted  upon  Ijy 
the  otlicr  jjarty :  such  an  affirmation  avoids  the  contract  or 
converts  the  offending  party  into  a  trustee  for  the  person 
defrauded.  But  how  far  a  contracting  party  may  legally 
conceal  facts  known  to  him,  affecting  the  value  of  the  sub- 
ject-matter of  the  agreement,  is  another  and  more  difficult 
question.  There  is  no  doubt  in  sound  morals  upon  the 
matter.  The  natural  instincts  of  every  right-minded  man 
concur  with  every  writer  on  morals  in  condemning  every 
concealment  that  suffers  another  to  contract  in  ignorance  of 
the  facts  that  give  value  to  his  property.^  The  common  law 
teaches  as  high  a  standard  of  morals  as  any  other  system  of 
law.     The  decisions  of  judges  and  the  books  of  elementary 

^  Turner  v.  Harvey,  1  Jac.  169, 

2  Cic.  de  Off.  Lib.  3,  c.  12,  13;  Paley,  Mor.  Phi.  B.  3,  c.  7 ;  Grotius, 
B.  2,  c.  12,  §  9;  Puff.  De  Jure  Xat.  B.  5,  c.  3,  §  4. 

(a)  The  rule  now  is  that  one  per-  v.  Gould,  [1893]  1  Q.   B.  491,  49S. 

son   is   not  liable,    at    least   in   an  The  above  rule  does  not  apply  when 

action  of  deceit,  for  a  false  repre-  there  is  a  legal  obligation  on  the 

sentation  upon  the  faith  of  which  part  of  one  person  towards  another 

another  person   acts,    even    though  to    give   him    correct    information, 

made  carelessly  or  negligently,  and  snch  as  the  obligation  of  a  tru.^tee 

without  investigation,  provided  he  to  give,  on  demand,  to  his  cestui  que 

made  it  in  the  honest  belief  that  it  trui<t    information   as   to   the    tru.st 

was  true.     Derry  v.  Peck,  14  A.  C.  fund ;  but  the  trustee  is  not  obliged 

337  ;  Angus  v.  Clifford,  [1891]  2  Ch.  to  answer  the  inquiries  of  a  stranger, 

449;  Nash  r.  Minnesota  Title  Co.,  like     an    intending    incumbrancer, 

1G3  Mass.    574;    Kountze   v.   Ken-  who  is  about  to  deal  with  the  cp.v/i/j 

nedy,  147  N.  Y.  124.     See  Houston  que  trust.     Low  v.  Bouverie,  [1891] 

V.  Thornton,  122  N.  C.  36.").     There  3  Ch.  82  ;  Re  Wyatt,  65  L.  T.  214  ; 

is  thus  no  real  distinction  between  [1891]  W.  N.  137,  192  ;  In  re  Tillott, 

fraud   in    a    court  of    equity   and  [1892]  1  Ch.  86;    I?i  re  Dartnall^ 

fraud  at  common  law.     Le  Lievre  [1895]  1  Ch.  474. 

247 


§  178.]  CONSTKUCTIVE    TRUSTS.  [CHAr.   VI. 

writers  contain  the  highest  and  purest  maxims  of  good  faith 
and  sound  morality  in  every  transaction  and  relation  of  life. 
Whenever,  therefore,  a  question  of  concealment  arises, 
cither  in  a  suit  at  common  law  or  in  equity,  it  cannot  be  a 
question  what  the  highest  morality  requires;  but  it  is  a 
question  how  far  courts  can  go  practically  in  giving  relief, 
without  rendering  the  contracts  of  men  so  uncertain  that  no 
business  could  be  transacted  without  danger  of  prolonged 
litigation.  In  communities  governed  by  known,  fixed,  and 
practical  rules,  and  not  by  the  mere  discretion  of  men  or 
judges,  it  sometimes  happens  that  courts  must  decline  to 
give  relief  in  cases  where  a  man  of  pure  principles  and 
delicate  honor  would  scorn  to  obtain  or  hold  an  advantage. 
Thus,  in  all  cases  of  suggestio  fahi,  where  active  steps  have 
been  taken  to  deceive  and  gain  an  advantage,  courts  have 
little  trouble  in  giving  relief;  but  where  an  advantage  has 
been  gained  by  concealment,  or  suppressio  veri,  as  it  is  called, 
or  by  mere  silence,  it  is  more  difficult  to  lay  down  fixed 
rules  that  may  not  do  more  harm  than  good  to  business  and 
society.  However,  concealment,  or  suppressio  veri,  is  often 
of  that  fraudulent  character  that  avoids  a  contract  or  con- 
verts the  offending  party  into  a  trustee. 

§  178.  There  may  be  such  relations  between  the  parties 
that  silence,  or  the  non-disclosure  of  a  material  fact,  will 
be  a  fraudulent  concealment.  If  a  person  standin<r  in  a 
special  relation  of  trust  and  confidence  to  another  has  infor- 
mation concerning  property,  and  contracts  with  the  other, 
and  does  not  disclose  his  exclusive  knowledge,  the  contract 
may  be  avoided,  or  he  may  be  held  as  a  constructive 
trustee.^  Thus,  if  an  attorney  contracts  with  his  client 
without  disclosing  to  him  material  facts  in  his  possession, 
the  contract  would  be  void.     The  trust  and  confidence  of  the 

1  Pidcock  V.  Bishop,  3  B.  &  Cr.  605 ;  IMartin  v.  Morgan,  1  Brod.  &  Bing. 
289  ;  Squire  r.  Whitton,  1  H.  L.  Cas.  333  ;  Owen  r.  Homan,  3  Eng  L.  & 
Eq.  121  ;  .5  Mac.  &  Gor.  378;  Etting  v.  Bank  of  U.  S.,  11  Wheat.  59; 
Carew's  Case,  7  De  G..  M.  &  G.  43:  Smith  v.  Bank  of  Scotlnnd.  1 
Dow,  P.  Cas.  292  ;  Clark  v.  Everhart,  63  Penn.  St.  347;  Miller  v.  Welles, 
23  Conn.  33. 
248 


CHAP.    VI.]  CONCEALMENT.  [§   IV 8. 

client  ill  his  attorney  is  sucli  that  an  obligation  is  iinj)Osed 
upon  the  attorney  to  comniiinicate  every  material  circum- 
stance of  law  or  fact.  Mere  silence,  under  such  circum- 
stances, becomes  fraudulent  concealment.^  The  same  rule 
applies  to  all  contracts  of  an  agent  with  his  principal,  prin- 
cipal with  his  surety,  landlord  with  his  tenant,  parent  with 
his  child,  guardian  with  his  ward,  ancestor  with  the  heir, 
husband  with  his  wife,  trustee  with  his  cestui  que  trust, 
executors  or  administrators  with  creditors,  legatees,  or  dis- 
tributees of  the  estate,  partners  with  their  copartners, 
appointors  with  their  appointees,  and  part-owners  with 
part-owners; 2  though  the  part-owners  of  a  ship,  holding  by 
several  and  independent  titles,  were  held  not  to  stand  in 
such  confidential  relations  to  each  other  that  one  was  under 
obligation  to  communicate  material  facts  upon  a  negotiation 
to  purchase. 2  («)  If  any  of  the  parties  above  named  propose 
to  contract  with  the  persons  with  whom  they  stand  in  such 
relations  of  trust  and  confidence,  they  must  use  the  utmost 
good  faith.  It  is  not  enough  that  they  do  not  affirmatively 
misre])resent :  thei/  must  not  conceal;  they  must  speak,  and 
speak  fully  to  every  material  fact  known  to  them,  or  the 
contract  will  not  be  allowed  to  stand.*     Thus,  if  a  partner 

1  Bulkley  v.  Wilford,  2  Clark  &  Fin.  102. 

2  Beaumont  v.  Boultbee,  5  Ves.  485  ;  Ormond  v.  Hutchinson,  13  Ves. 
51;  Gartside  v.  Isherwood,  1  Bro.  Ch.  558;  Wellford  v.  Chancellor, 
5  Grab.  39. 

8  ]\Iathews  v.  Bliss,  22  Pick.  48. 

*  IMaddeford  v.  Austwick,  1  Sim.  89  ;  2  M.  &  K.  279 ;  Pophani  v. 
Brooke,  5  Russ.  8 ;  Gordon  v.  Gordon,  3  Swanst.  470 ;  Cocking  v.  Pratt, 
1  Ves.  401  ;  Higgins  v.  Joyce,  2  Jones  &  La.  328;  Farnham  v.  Brooks, 
9  Pick.  234;  Ogden  v.  Astor,  4  Sandf.  S.  C.  312  ;  Ormond  v.  Hutchinson, 
13  Ves.  51 ;  Beaumont  v.  Boultbee,  5  Ves.  485 ;  Gartside  c.  Isherwood, 
1  Bro.  Ch.  558. 

(a)  See   Brownlie   v.   Campbell,  wards    a   mercantile    agency  is  not 

5  A.  C  025.     A  surely  is  under  no  necessarily  an  actual  fraud  upon  a 

larger  obligation  to  disclose  to  his  CO-  subscriber  relying  upon    its  rp|>ort. 

surety  than  the  creditor  is  under  to  See  Vermont  INTarble  Co.   r.  Smith, 

both  of  them.    Mackreth  v.  Walmos-  13  Ind.  App.  457. 
ley,  51  L.  T.  19.     Concealment  to- 

249 


§  179.]  CONSTKUCTIVE  TRUSTS.  [CHAP.  VI. 

who  keeps  the  accounts  of  the  firm  should  purchase  his 
copartner's  interest,  without  disclosing  the  state  of  the 
accounts,  the  agreement  could  not  stand.  ^  The  same  rule 
applies  to  family  relations  in  general;  as,  where  a  younger 
brother  disputed  the  legitimacy  of  his  elder  brother,  and  a 
settlement  and  partition  were  entered  into,  the  younger 
brother  having  in  his  possession  facts  that  tended  to  show 
that  his  parents  intermarried  before  the  birth  of  the  elder, 
which  facts  he  did  not  communicate,  the  settlement  was 
set  aside.  2  The  duty  of  disclosing  facts  arises  either  from 
a  fiduciary  relation,  or  from  a  trust  properly  understood  to 
be  reposed  in  one  party  by  another  aljout  a  matter  concern- 
ing which  the  latter  has  peculiar  means  of  information.^ 

§  179.  There  are,  also,  cases  where  a  party  must  not  be 
silent  upon  a  material  fact  within  his  knowledge,  although 
he  stands  in  no  relation  of  trust  and  confidence.  Thus,  if 
a  party  taking  a  guaranty  from  a  surety  does  not  disclose 
facts  within  his  knowledge  that  enhance  the  risk,  and 
suffers  the  surety  to  bind  himself  in  ignorance  of  the  in- 
creased risk,^  or  if  a  party  already  defrauded  by  his  clerk 
should  receive  security  from  a  third  person  for  such  clerk's 
fidelity,  without  communicating  the  fact  of  the  fraud  already 
committed,  thus  holding  the  clerk  out  as  trustworthy;^  in 
both  these  and  in  similar  cases  the  contracts  would  be  void 
for  concealment.     Silence  as  to  such  facts,  under  such  cir- 

1  Maddeford  v.  Austwick,  1  Sim.  89;  2  M.  &  K.  279  ;  Smith  in  re  Hay, 
6  Madd.  2 ;   Popham  v.  Brooke,  5  Russ.  8. 

2  Cordon  v.  Gordon,  3  Swanst.  399 ;    Cocking  v.  Pratt,  1  Ves.  401. 

3  Maclary  v.  Reznor,  3  Del.  Ch.  445. 

*  Martin  v.  Morgan,  1  Brod.  &  Bing,  289  ;  Pidcock  r.  Bishop,  3  B.  & 
Cr.  605 ;  Owen  v.  Homan,  3  Eng.  L.  &  Eq.  121 ;  25  Eng.  L.  &  Eq.  1  ; 
4  H.  L.  Cas.  997 ;  Carew's  Case,  7  De  G.,  M.  &  G.  43 ;  Leith  Banking  Co. 
V.  Bell,  8  Shaw  &  Dun.  721;  Railton  v.  Matthews,  10  CI.  &  Fin.  935; 
Hamilton  v.  Watson,  12  id.  119  ;  Squire  v.  Whitton,  1  H.  L.  Cas.  333 ;  N. 
British  Ins.  Co.  v.  Lloyd,  28  Eng.  L.  &  Eq.  456  ;  10  Exch.  523 ;  Evans  v. 
Kueeland,  9  Ala.  42. 

5  Franklin  Bank  v.  Cooper,  36  Maine,  195 ;  Smith  v.  Bank  of  Scotland, 
1  Dow,  P.  Cas.  272;  Maltby's  Case,  id.  294  ;  Etting  v.  Bank  of  U.  S.,  11 
Wheat.  59. 

250 


CHAP.   VI.]  CONCEALMENT.  [§  ISO. 

cumstanccs,  would  be  equivalent  to  a  positive  affirmation 
that  no  such  facts  existed.^  And  so,  if  a  party  knows  that 
another  is  relying  upon  his  judgment  and  knowledge  in  con- 
tracting with  hiui,  although  no  cunlidential  relation  exists, 
and  he  does  not  state  material  facts  within  his  knowledge, 
the  contract  will  be  avoided ;  for  knowingly  to  permit 
another  to  act  as  though  the  relation  was  conlidential,  and 
yet  not  to  state  material  facts,  is  fraudulent.  It  is  said 
that  a  party  in  such  circumstances  is  hound  to  destroj/  the 
confidence  reposed  in  him,  or  to  state  all  the  facts  which  such 
confidence  demands.^  He  cannot  himself  contract  at  arm's 
length,  and  permit  the  other  to  act  as  though  the  relation 
was  one  of  trust  and  confidence.  And  so,  if  one  party 
knows  that  the  other  has  fallen  into  a  delusion  or  mistake  as 
to  an  article  of  property,  and  he  docs  not  remove  such 
delusion  or  mistake,  but  is  silent,  and  enters  into  a  con- 
tract, knowing  that  the  other  is  contracting  under  the 
influence  of  such  delusion  or  mistake,  the  contract  may  be 
set  aside;  for,  not  to  remove  that  delusion  or  mistake  is 
equivalent  to  an  express  misrepresentation.^ 

§  180.  There  must  be  a  positive  concealment  to  amount 
to  a  suppressio  veri.  Mere  silence,  if  nothing  is  done  to 
conceal  a  fact,  is  not  in  general  suppressio  veri.  Aliud  est 
celare,  aliud  tacere.  Mere  silence  between  strangers,  con- 
tracting at  arm's  length,  and  understanding  that  they  are  so 
contracting,  will  not  in  general  avoid  a  contract,  or  convert 
one  of  the  parties  into  a  trustee  for  the  other.*     Thus,  the 

^  Franklin  Bank  v.  Cooper,  36  Maine,  195;  Smith  r.  Bank  of  Scotland, 
1  Dow,  P.  Cas.  272 ;  Maltby's  Case,  id.  291;  Etting  v.  Bank  of  U.  S.,  11 
Wheat.  59. 

2  Per  Mr.  Redfield,  1  Story's  Eq.  Jur.  §  212  a;  Bruce  r.  Ruler,  2  Man. 
&  Ry.  3;  Fitzsimmons  v.  Joslin,  21  Vt.  129;  Hanson  v.  Edgerly,29  N.  H. 
313 ;  Bank  of  Republic  r.  Baxter,  31  Vt.  101  ;  Allen  r.  Addington,  7 
Wend.  10  ;  11  Wend.  37-1 ;  Pa.ldock  c.  Strobridge,  29  Vt.  470;  Dolman  v. 
Nokes,  22  Beav.  102;  Ilayward  v.  Cope,  25  Beav.  110;  Foot  c.  Foote,  58 
Bai-b.  258  ;  Babcock  c.  Case,  01  Penn.  St.  427. 

«  Keates  v.  Cadogau,  2  Eng.  L.  &  Eq.  318  ;  Hill  v.  Gray,  1  Starkie,  434. 

*  Fox  V.  Mackreth,  2  Bro.  Ch.  300 ;  2  Cox,  320 ;  Harris  v.  Tyson,  24 
Penn.  St.  359;  Mathews  v.  Bliss,  22  Pick.  48. 

251 


§  180.]  CONSTKUCTIVE    TRUSTS.  [CHAP.   VI. 

value  of  property  may  frequently  depend  upon  extrinsic 
facts ;  as,  whether  there  is  peace  or  war,  whether  there  is  or 
is  not  a  demand  in  the  market,  or  in  a  distant  place  for 
property  of  that  description,  whether  transportation  is 
accessible,  or  whether  the  money  market  is  easy  or  close. 
If  one  having  information  upon  such  matters  enters  into  a 
contract  with  another  with  whom  he  has  no  confidential  or 
fiduciary  relations,  and  he  neither  says  nor  does  anything  to 
mislead  or  deceive,  but  is  simply  silent  upon  the  facts 
known  to  him,  equity  will  not  in  general  disturb  the  con- 
tract ; '  but  if  he  speaks  a  word,  or  does  an  act,  that  tends  to 
mislead  the  other  party,  or  throw  him  off  his  guard,  the 
contract  may  be  avoided,  and  he  may  be  converted  into  a 
trustee.^  The  law  permits  persons  to  deal  at  arm's  length, 
if  they  both  understand  that  they  are  so  dealing,  and  it  per- 
mits them  to  be  silent  as  to  matters  known  only  to  one  of 
them,  if  no  inquiries  are  made ;  but  it  does  not  permit  any 
artifice  to  be  added  to  silence,  in  order  to  conceal  a  fact 
material  to  the  contract.  Thus,  concealment,  or  suppressio 
veri,  which  amounts  to  a  fraud  in  the  sense  of  a  court  of 
equity,  and  for  which  it  will  grant  relief,  is  defined  to  be 
the  non-disclosure  of  those  facts  and  circumstances  which 
one  party  is  under  some  legal  or  equitable  obligation  to 
communicate  to  the  other,  and  which  the  latter  has  a  right, 
not  merely  inforo  conscientice,  sed  juris  et  de  jure,  to  know.^ 
Thus,  if  a  stranger  discover  a  valuable  mine  or  spring,  or 
any  other  thing  or  circumstances,  on  or  in  connection  with 
land  of  another,  he  may  be  silent,  and  purchase  the  land;* 

1  Fox  V.  Mackreth,  2  Bro.  Ch.  300;  2  Cox,  320;  Harris  v.  Tyson,  21 
Penn.  St.  359;  Mathews  v.  Bliss,  22  Pick.  48.  Mr.  Kent,  iu  the  earlier 
editions  of  his  Commentaries,  stated  a  broader  doctrine,  but  his  later 
editions  st;ite  the  doctrine  as  in  the  text.  See  2  Kent,  482,  484,  490,  and 
notes;  Laidlaw  v.  Organ,  2  Wheat.  178. 

2  Turner  v.  Harvey,  Jac.  1G9 ;  Laidlaw  v.  Organ,  2  Wheat.  178; 
Mathews  v.  Bliss,  22  Pick.  48. 

3  Young  V.  Bumpass,  1  Freem.  Ch.  241 ;  1  Story's  Eq.  Jur.  §  207 ; 
Irvine  v.  Kirkpatrick,  3  Eng.  L.  &  Eq.  17;  Laidlaw  v.  Organ,  2  Wheat. 
178. 

4  Fox  V.  Mackreth,  2  Bro.  Ch.  400 ;  2  Cox,  300  ;  1  Lead.  Cas.   Eq. 

252 


CHAP.   VI.]  CONCEALMENT.  [§  LSI. 

but  if  he  use  any  art  to  prevent  a  knowledge  of  the  fact 
from  coming  to  the  owner,  equity  will  rescind  the  contract/ 
and  a  very  slight  act  will  convert  innocent  silence  into 
fraudulent  concealment. ^  But  if  one  of  the  parties  employs 
an  agent  to  contract,  and  the  agent,  knowing  a  material 
fact,  is  silent  or  conceals  it,  his  principal  will  not  be 
affected  with  the  knowledge,  nor  will  the  contract  be 
vitiated.^ 

§  181.  Courts  of  equity  will  not  only  interfere  in  cases  of 
fraud,  to  set  aside  acts  done,  but  they  will  also,  if  acts  have 
by  fraud  been  prevented  from  being  done,  interfere,  and 
treat  the  case  exactly  as  if  the  acts  had  been  done ;  and  this 
they  will  do,  l)y  converting  the  party  who  has  committed  the 
fraud,  and  profited  by  it,  into  a  trustee  for  the  party  in 
whose  favor  the  act  would  otherwise  have  been  done.*  If  one 
by  a  promise  to  buy  land  at  an  auction  sale  for  one  having 
an  equitable  interest  in  it  induces  the  latter  and  her  friends 
not  to  bid  against  him,  he  will  be  held  a  trustee.^  Where 
one  induces  the  owner  of  real  estate  not  to  redeem  it  by  a 
promise  to  hold  the  property  until  paid  by  the  rents  and 
profits,  and  then  to  return  the  estate,  equity  will  hold  him 
to  his  promise.  ^  So,  if  a  delay  is  agreed  to  in  the  sale  of 
land  on  a  promise  of  the  debtor  to  sell  privately  and  apply 
the   proceeds    in  a  certain    manner,    the    proceeds   will   be 

188;  Harris  v.  Tyson,  21  Penn.  St.  359  ;  Earl  of  Bath,  &c.,  Case,  3  Ch. 
Cas.  56,  74,  103,  lOi ;  Mathews  v.  Bliss,  22  Pick.  48. 

1  Bowman  v.  Bates,  2  Bibb,  47. 

2  Turner  v.  Harvey,  Jac.  169;  Laidlaw  v.  Organ,  2  Wheat.  178; 
Torrey  r.  Buck,  1  Green,  Ch.  380  ;  Mathews  v.   Bliss,   22  Pick.  48. 

0  Wilde  r.  Gibson,  1  II.  L.  Cas.  G05,  reversing  same  case,  2  Y.  &  Col. 
542. 

*  ]Middleton  i\  Middleton,  1  Jac.  &  W.  96;  Reach  y.  Keunegall,  1  Vea. 
123;  Oldham  v.  Litchford,  2  Vern.  506;  Button  v.  Poole,  2  Lev.  211; 
]\Iestaer  c.  Gillespie,  11  Yes.  638,  and  cases  cited;  Jenkins  v.  Eldredge,  3 
Story,  181.  See  remarks  in  ]\IcGowan  v.  McGowan,  14  Gray,  119  ;  Morey 
V.  Herrick,  18  Pa.  St.  128;  Wallgrave  v.  Tebbs,  2  K.  &  J.  313;  Dixon  r. 
Olmius,  1  Cox,  Ch.  414. 

6  Cowperthwaite  v.  Bank,  102  Penn.  St.  397;  Heath's  App.,  100  id.  1. 

^  Scheffermeyer  v.  Schaper,  97  Ind.  70. 

253 


§  181.]  CONSTRUCTIVE    TRUSTS.  [CHAP.   VT. 

impressed  with  a  trust.  ^  If  a  person  by  his  promises,  or  by 
any  fraudulent  conduct,  with  a  view  to  his  own  profit,  pre- 
vents a  deed  or  will  from  being  made  in  favor  of  a  third 
person,  and  the  property  intended  for  such  third  person 
afterwards  comes  to  him  who  fraudulently  prevented  the 
execution  of  the  will  or  deed,  he  will  be  held  to  be  a  trustee 
for  the  person  defrauded,  to  the  extent  of  the  interest 
intended  for  him.^  So,  where  the  tenant  in  tail  in  re- 
maiuder,  fraudulently  or  by  force,  prevented  the  tenant  in 
tail  for  life  in  possession  from  suffering  a  common  recovery, 
and  thereby  barring  the  entail  for  the  purpose  of  providing 
for  other  persons  by  will  out  of  the  estate,  it  was  held  that 
the  tenant  in  tail  in  remainder,  when  the  estate  came  to 
him,  was  a  trustee,  and  the  court  took  care  that  the  estate 
should  go  precisely  as  if  the  common  recovery  had  been 
suffered,  although  the  tenant  in  tail  was  a  married  woman, 
and  the  fraud  had  been  committed  by  her  husband,  and  she 
was  not  privy  to  it.'^  And  where  issue  in  tail  prevented 
his  father,  tenant  in  tail,  from  suffering  a  recovery,  by 
promising  to  provide  for  younger  children,  in  favor  of  whom 
the  recovery  was  to  be  suffered,  equity  converted  the  tenant 
in  tail  into  a  trustee  for  the  younger  children.*  And  where 
a  person  fraudulently  intercepts  a  gift  intended  for  another, 
by  promising  to  hand  it  over  if  it  is  left  to  him,  equity  will 
compel  an  execution  of  the  promise,  by  converting  such 
person  into  a  trustee.^  (a)     So,  if  devisees  or  heirs  prevent  a 

^  Boyce  v.  Stanton,  15  Lea,  346. 

2  Middleton  v.  jNIiddleton,  1  Jac.  &  W.  96 ;  Reech  v.  Kennegall,  1  Ves. 
123  ;  Oldham  r.  Litchford,  2  Vern.  506  ;  Button  v.  Poole,  2  Lev.  211 ; 
Mestaer  v.  Gillespie,  11  Ves.  638,  and  cases  cited ;  Jenkins  v.  Eldredfre,  3 
Story,  181.  See  remarks  in  McGowan  v.  McGovran,  14  Gray,  119;  Morey 
V.  Herrick,  IS  Penn.  St.  128;  Church  v.  Ruland,  64  id.  432;  Wallgrave  v. 
Tebbs,  2  K.  &  J.  313;  Dixon  v.  Olmius,  1  Cox,  Ch.  414;  Fischbeck  v. 
Gross,  112  111.  208. 

3  Luttrell  V.  Olmius,  and  Waltham's  Case,  cited  11  Ves.  638  ;  and  14 
Ves.  290. 

*  Jones  r.  IVfcKee,  6  Barr,  428 ;  Devenish  v.  Baines,  Prec.  Ch.  4. 

6  Hoge  I'.   Hoge,  1  Watts,   213;    Devenish  v.   Baines,   Prec.   Ch.  4; 

(rz)  Rollins  V.  Mitchell,  52  Minn.  41,  50. 
254 


CIIAI'.    VI.]  CONCEALMENT.  [§  181. 

testator  from  charging  his  estate  with  annuities  or  legacies, 
by  saying  that  it  is  nut  worth  while  to  put  them  in  the  will, 
and  that  they  will  pay  them,  they  will  be  trustees  for  such 
intended  annuitants  or  legatees.'  So,  if  an  executor  pre- 
vents a  gift  or  legacy  from  being  given  to  one,  by  jjromising 
to  pay  it  as  if  inserted  in  the  will,  he  will  be  a  trustee.^ 
So,  where  a  testator  held  a  note  against  his  father,  which 
he  intended  to  give  up  in  his  will,  the  residuary  legatee 
promising  that  she  would  surrender  the  note,  equity  held 
her  to  be  a  trustee.^  So,  Avhere  one  fraudulently  i^rocured  a 
deed  to  be  made  to  herself,  instead  of  to  another.*  But 
there  must  be  some  actual  fraud  in  procuring  a  deed  or 
devise  to  one's  self :  the  mere  breach  of  a  promise  to  convey 
is  not  enough.^  Where  the  plaintiff  wished  to  buy  certain 
land  and  engaged  the  defendant  to  find  some  one  Avho  would 
lend  the  plaintiff  the  necessary  money,  and  the  defendant 
dissuaded  the  plaintiff  from  seeking  the  money  in  other 
directions,  in  consequence  of  which  the  plaintiff  did  to  some 
extent  abstain  from  trying  to  get  the  funds  elsewhere,  and 
the  defendant  l)ought  the  land  on  his  own  behalf  with  his 
own  money  and  took  a  deed  to  himself,  it  was  held  that  the 
defendant  was  not  a  trustee  for  the  plaintiff  either  on  the 
ground  of  agency  or  fraud.  Judge  Holmes  said :  "  In  any 
view  of  the  law,  before  we  can  convert  a  man  into  a  trustee, 
on  the  ground  of  fraud,  we  must  be  able  to  see  with  some 
reasonable  certainty  that  his  fraud  was  the  means  of  dcpriv- 

Church  r.  Ruland,  64  Penn.  St.  432;  Dowd  v.  Tucker,  41  Conn.  198;  Wil- 
liams V.  Vreeland,  29  N.  J.  Eq.  417. 

1  Chamberlain  v.  Chamberlain,  2  Freem.  34;  Oldham  v.  Litchford,  2 
Vern.  500;  Mestaer  y.  Gillespie,  11  Ves.  638;  Huguenin  v.  Baseley,  14 
Ves.  290;  Griffin  v.  Xanson,  4  Ves.  344;  Hoge  j;.  Hoge,  1  Watts,  213; 
Jones  V.  McKee,  3  Barr,  4!)6,  and  4  Barr,  428 ;  Xorris  c.  Frazer,  L.  R.  15 
Eq.  329;  McCormick  v.  Grogan,  L.  R.  4  H.  L.  82. 

-  Thynn  f.  Thynn,  1  Vern.  296;  Reach  v.  Kennigate,  Amb.  67;  Bar- 
row V.  Grcenbough,  3  Ves.  152;  Chamberlain  v.  Agar,  2  V.  &  B.  250; 
Podniore  r.  Gunning,  7  Sm.  614. 

8  Richardson  v.  Adams,  10  Yerg.  273;  Jones  v.  McKee,  3  Barr,  496. 

<  Millt-r  V.  Pearce,  6  Watts  &  S.  97. 

'  Hoge  v.  Hoge,  1  Watts,  213. 

255 


§  181.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

ing  the  plaintiff  of  the  property  he  seeks  to  follow,"  and  in 
this  case  he  did  not  deem  it  probable  that  such  was  the  con- 
sequence of  the  defendant's  fraudulent  concealment  of  his 
intent  to  buy,  and  of  his  dissuasions.^  We  think  this 
decision  is  open  to  severe  criticism.  Such  fraudulent  con- 
duct should  be  repressed  with  a  strong  hand,  the  presump- 
tion should  be  against  the  evil  doer  so  strongly  as  to  cut 
off  the  chance  of  his  gaining  an  advantage  by  his  own  wrong 
or  keeping  it  if  gained,  (a)  If  an  heir  fraudulently,  or 
through  ignorance,  procure  a  will  to  be  revoked,  so  that  the 
estate  comes  to  him,  he  will  be  a  trustee;  as,  where  A.  had 
sold  a  part  of  his  estate,  and  the  purchaser  desired  a  fine  to 
be  levied,  B.,  his  heir,  acting  as  his  attorney,  advised  a  fine 
to  be  levied  of  his  whole  estate,  whereby  A. 's  will  was 
revoked,  and  the  estate  descended  to  B.  ;  the  devisee  under 
the  will  called  upon  B.  to  hold  the  property  as  his  trustee, 
and  he  was  so  held  by  the  court;  Lord  Eldon  saying,  "  You, 
who  have  been  wanting  in  what  I  conceive  to  be  the  duty  of 
an  attorney,  if  it  happens  that  you  get  an  advantage  by  that 
neglect,  you  shall  not  hold  that  advantage,  but  you  shall  be 
trustee  of  the  property  for  the  benefit  of  that  person  who 
would  have  been  entitled  to  it  if  you  had  known  what,  as  an 

1  Collins  I'.  Sullivan,  135  Mass.  461,  463. 

(a)  Theft  and  felony  do  not  pre-  650  ;  see  Mutual  Life  Ins.  Co.  v. 
vent  the  felon  from  being  held  a  Armstrong,  117  U.  S.  591 ;  41  Cent, 
trustee.  Kebraska  Nat.  Bank  v.  L.  J.  377.  Elsewhere  it  is  held 
Johnson,  51  Neb.  546;  Grouch  v.  that  the  murder  does  not  alter  the 
Hazlehurst  L.  Co.  (Miss.),  16  So.  will  or  the  law  of  descent.  Shellen- 
Rep.  496.  In  England  and  New  berger  t;.  Ransom,  41  Neb.  631 ;  31 
York  it  is  held  that  a  person  who  Neb.  61;  Owens  y.  Owens,  100  N.C. 
kills  another  to  secure  the  latter's  240;  Holdom  v.  Ancient  Order  of 
property  by  descent  or  devise,  or  to  United  Workmen,  159  111.  619; 
prevent  the  revocation  of  his  will.  Carpenter's  Estate,  170  Penn.  St. 
cannot,  on  the  ground  of  public  pol-  203  ;  Deem  v.  Millikin,  6  Ohio  Cir. 
icy,  take  as  heir  or  under  the  will.  Ct.  357.  The  view  is  also  main- 
See  Cleaver  v.  Mutual  R.  F.  Life  tained  that  the  murderer,  upon  thus 
Ass'n,  [1892]  1  Q.  B.  147 ;  Riggs  acquiring  title,  is  a  constructive 
V.  Palmer,  115  N.  Y.  506;  Eller-  trustee.  See  Prof.  J.  B.  Ames's 
son  V.  Westcott,  148  N.  Y.  149 ;  article  in  36  Am.  L.  Reg.  N.  s. 
Lundy  v.  Lundy,  24  Can.  Supr.  Ct.  227. 
25tj 


CHAP.    VI.]  ACTS    PKEVKNTED    BY   FRAUD.  [§  182. 

attorney,  you  ought  to  have  known,  and,  not  knowing  it,  you 
shall  not  take  advantage  of  your  own  ignorance."^  In  such 
cases  it  has  been  held  that  mere  promises  are  not  enough, 
that  there  must  be  some  proof  of  a  fraudulent  intent  or  j)ur- 
posc  to  create  a  ti'ust;  it  is  also  held  that  such  trust  docs 
not  follow  the  jjroperty,  but  is  only  an  agreement  which 
equity  will  enforce.''^ 

§  182.  While  a  court  of  equity  will  thus  create  a  trust 
where  a  person  has  by  fraud  prevented  a  will  from  being 
made  in  favor  of  another,  it  has  no  jurisdiction  to  prevent 
the  probate  of,  or  to  set  aside,  a  will  fraudulently  procured. 
Ecclesiastical  and  common-law  courts  in  England,  and  pro- 
bate courts  with  the  common-law  courts  in  the  United 
States,  alone  have  jurisdiction  over  wills.  Thus,  until 
within  a  short  period  all  wills  in  England  were  first  pre- 
sented to  the  ecclesiastical  courts,  and  they  were  there 
allowed  or  disallowed  according  to  the  evidence.  If  they 
were  allowed,  the  final  judgment  allowing  them  was  conclu- 
sive upon  the  personalty  until  such  judgment  was  reversed 
or  annulled.  The  validity  of  such  will,  however,  so  far  as 
real  estate  was  concerned,  was  tried  in  the  courts  of  com- 
mon law  as  often  as  the  title  to  the  separate  parcels  of  land 
was  in  controversy.  Whenever  in  the  prosecution  or  defence 
of  a  real  action  such  will  of  real  estate  Avas  given  in  evi- 
dence, not  only  its  execution  was  tried,  but  its  validity,  as 
whether  it  was  obtained  by  undue  influence  or  fraud,  or 
whether  the  testator  was  of  sound  mind.  Courts  of  equity 
in  a  few  early  cases  assumed  jurisdiction  to  set  aside  wills 
procured  by  fraud,^  but  it  is  now  well  settled  that  they  will 
not  interfere,  but  that  courts  of  common  law  have  exclusive 
jurisdiction;  nor  will  they  interfere  to  set  aside  the  judg- 

1  Rulkley  v.  Wilford,  2  CI.  &  Fin.  177  ;  8  Bligh  (x.  s),  11 ;  Segrave  v. 
Kirwau,  Boat.  157  ;  Nanney  r.  Williams,  22  Beav.  4r)2.  See  Mix  v.  King, 
55  111.  431. 

2  Bedilian  ?•.  Seaton,  3  Wall.  Jr.  280. 

8  INIaiindy  v.  :Maundy,  1  Ch.  R.  66;  Well  v.  Thornagli,  Pr.  Ch.  123; 
Goss  V.  Tracy,  1  P.  AVnis.  287 ;  2  Veru.  700. 

VOL.  I.  — 17  257 


§  182.]  CONSTKUCTIVE    TRUSTS.  [CHAP.   VI. 

ment  or  probate  of  a  will  procured  by  fraud.  ^  To  set  aside 
such  a  judgment,  proceedings  must  be  had  in  the  nature  of 
proceedings  for  a  new  trial  in  the  court  in  which  such 
judgment  or  decree  was  passed. ^  The  extent  to  which  a 
court  of  equity  will  go  in  correcting  a  fraud  perpetrated  in 
relation  to  a  will,  is  to  give  relief  where  fraud  has  pre- 
vented a  will  from  being  made,  or  where  a  fraud  has  been 
practised  upon  the  legatee,  as  where  a  name  is  inserted 
fraudulently  in  a  will  in  place  of  the  intended  devisee  or 
legatee,  or  where  the  revocation  of  a  will  has  been  procured 
or  prevented  by  fraud,^  or  where  there  is  a  gift  to  executors 
under  such  circumstances  that  it  ought  to  be  a  trust  for 
relations,  or  where  a  legatee  promises  the  testator  that  he 
will  hand  over  the  legacy  to  a  third  person.*  In  all  these 
cases  the  will  itself  is  established,  but  certain  other  col- 
lateral things  are  decreed  growing  out  of  the  manner  in 
which  the  will  was  procured.^  In  New  York,  New  Jersey, 
and  South  Carolina,  the  old  English  practice  is  followed, 
and  wills  must  be  proved  whenever  they  are  used  to  estab- 
lish or  defeat  the  title  to  real  estate,  nor  has  a  court  of 
equity  jurisdiction  to  set  them  aside.  This  rule  has  been 
modified  in  New  York  so  far  that  when  the  title  of  real 

1  Roberts  v.  Wynne,  1  Ch.  R.  125;  Herbert  v.  Lownes,  id.  13;  Archer 
V.  Mosse,  2  Vern.  8;  Thynn  v.  Thynn,  1  Vern.  290;  Devenish  v.  Baines, 

1  Pr.  Ch.  3;  Barnesley  v.  Powell,  1  Ves.  287;  Marriott  v.  Marriott,  Str. 
666 ;  Plume  v.  Beale,  1  P.  Wms.  388 ;  Rockwood  v.  Rockwood,  1  Leon. 
192;  Cro.  Eliz.  163;  Dutton  v.  Poole,  1  Vent.  318;  Beringer  v.  Beringer, 
26  Car.  II.;  Chamberlain  v.  Chamberlain,  2  Freem.  34;  Leicester  v.  Fox- 
croft,  Gilb.  11 ;  Ketrick  v.  Barnsby,  3  Bro,  P.  C.  358  ;  Webb  v.  Claverden, 

2  Atk.  424 ;  Bennett  v.  Vade,  id.  324  ;  Anon.,  3  Atk.  17 ;  Sheffield  v.  Buck- 
ingham, 1  Atk.  628;  Allen  v.  Macpherson,  5  Beav.  469;  1  Phili.  133; 
1  H.  L.  Cas.  191 ;  Murray  v.  Murphy,  39  Miss.  214. 

2  Waters  v.  Stickney,  12  Allen,  1. 

8  Bulkley  v.  Wilford,  2  CI.  &  Fin.  177;  8  Bligh  (n.  s.),  11;  Segrave  v. 
Kirwan,  Beat.  157 ;  Nanney  v.  Williams,  22  Beav.  452 ;  Dowd  v.  Tucker, 
41  Conn.  198 ;  Williams  v.  Vreeland,  29  N.  J.  Eq.  417. 

4  Kennell  v.  Abbott,  4  Ves.  802;  Marriott  v.  Marriott,  Str.  666,  cited 
Gilbert,  203,  209  ;  Williams  v.  Fitch,  18  N.  Y.  546;  7  Sim.  644;  1  Watts, 
163 ;  Church  v.  Ruland,  64  Penn.  St.  432. 

6  Marriott  v.  Marriott,  Str.  &  Gil.  ut  supra. 
258 


CHAP.    VI.]  ACTS    PREVENTED    BY    FRAUD.  [§  1,92. 

estate  depends  upon  a  will,  the  validity  of  which  is  doubted, 
and  the  parties  are  not  in  possession  of  the  real  estate,  nor 
in  such  a  position  that  a  real  action  can  be  brou^dit,  or  if 
there   is  any  technical  reason  why  a  real  action  cannot  be 
sustained,  a  court  of  equity  will  take  jurisdiction  to  prevent 
a   failure    of   justice.'     In    nearly  all    the  other  States  the 
judgments  of  the  courts  of  probate  allowing  a  will  arc  con- 
clusive  upon   all   the   world,   both  as   to  real  and  personal 
estate.     In   all   actions  at  law  involving  title    under   such 
wills,   it  is  only  necessary  to  produce  the  judgment  of  the 
probate    court   allowing   them.     Courts    of   equity  have    no 
jurisdiction  to  set  aside  such  wills  for  fraud,  nor  can  they  set 
aside  the  judgments  of  the   probate  court  allowing  them.^ 
If,  however,   a  will  is  probated  by  accident  or  mistake,  or 
the    probate    is   procured   by  fraud,    the    judgment  may  be 
reversed  or  modified  by  proceedings  in  the  same  court  in 
the  nature  of  a  petition  for  a  review  or   for  a  new  trial.  ^ 
This,  however,  may  depend  upon  the  statutes  of  the  several 
States  giving  jurisdiction  to  their  several  courts  of  probate. 
While  courts  of  equity  will  not  interfere  to  set  aside  wills 
procured  by  fraud,  or  to  set  aside  the  probate  of  those  pro- 
cured  by   fraud,    they   will   not   interfere   in   favor   of   the 
fraudulent  party  to  enable  him  to  establish  any  rights  under 
the  will.*     As  a  general  rule  neither  courts  of  equity  nor  of 
common  law  will  take  notice  of  a  will  for  any  purpose  unless 
it  has  been  proved  in  the  courts  of  probate  having  jurisdic- 
tion over  such  matters.^ 

1  Brady  v.  McCosker,  1  Comst.  214  ;  Clarke  v.  Sawyer,  2  id.  498. 

*  Gould  V.  Gould,  3  Story,  510;  Fouvergne  v.  New  Orleans,  18  How. 
470;  Gaines  v.  Chew,  2  IIow.  645;  Tarver  v.  Tarver,  9  Pet.  180:  Adams 
V.  Adams,  22  Vt.  50;  Cotton  v.  Ross,  1  Paige,  396;  Muir  u.  Trustees, 
3  Barb.  Oh.  477;  Ilaraberlin  v.  Tenny,  7  How.  (Mi.ss.),  143;  Lyne  v. 
Guardian,  1  Miss.  410;  Hunter'.s  Will,  6  Ohio,  499;  Watson  i;.  Bothwell, 
11  Ala.  653;  Johnson  v.  Glasscock,  2  Ala,  233;  Hunt  v.  Hamilton.  9  Dana, 
90;  McDowall  v.  Peyton,  2  Des.  313;  Howell  v.  Wliitchurch,  4  Ileyw.  49; 
Burrows  v.  Ragland,  6  Humph.  481 ;  Blue  v.  Patterson,  1  Dev.  &  Bat.  Eq. 
459;  Trexler  v.  Miller,  6  Tred.  Eq.  248. 

8  Waters  v.  Stickney,  12  Allen,  1.       *  Nelson  v.  Oldfield,  2  Vern.  76. 

5  Price  u.  Dewhurst,  4  My.  &  Cr.  76,  80,  81 ;  Gaines  v.  Chew,  2  How. 
615,  646. 

259 


§  183.]  CONSTRUCTIVE  TRUSTS.         [CHAP.  VI. 

§  183.  Another  instance  of  a  constructive  trust  arising 
from  fraud  in  relation  to  deeds  or  wills,  is  where  a  party 
has  suppressed  or  destroyed  a  deed  or  other  instrument  of 
title.  Every  one  is  entitled  to  aid  from  the  judicial  tribunals 
in  all  cases  of  fraud,  and  if  a  defendant  has  fraudulently 
suppressed  or  destroyed  the  evidence  of  a  man's  title,  and  is 
in  possession  of  the  property  himself,  he  ought  to  be  declared 
a  trustee  for  the  rightful  owner  under  the  suppressed  paper ;  ^ 
and  if  a  deed  or  will  is  destroyed  or  suppressed,  a  court  of 
equity  can  give  relief.  There  seems  to  be  no  difficulty  in 
this  matter  so  far  as  relates  to  deeds,^  nor  so  far  as  relates 
to  wills  of  real  estate  in  those  jurisdictions  where  a  will 
must  be  proved  in  court  in  every  instance  where  it  is  neces- 
sary to  the  title  of  real  estate ;  hut  in  jurisdictions  where  a 
will  cannot  be  noticed  by  other  courts  until  it  is  first  proved 
in  a  court  of  probate,  there  is  a  difficulty  in  proceeding  in 
equity  for  fraud  in  suppressing  it,  except  by  a  bill  of  dis- 
covery of  evidence  to  use  in  the  courts  of  probate  in  prov- 
ing the  will.  Accordingly  it  has  been  determined  in  some 
States  that  a  will  cannot  be  acted  upon  in  courts  of  equity, 
although  lost,  destroyed,  or  suppressed,  until  it  is  first 
proved  in  a  probate  court.  ^  In  other  States,  courts  of  equity, 
in  cases  of  suppressed  or  spoliated  wills,  have  taken  juris- 
diction in  odium  spoliatoris,  and  have  allowed  such  will  to 
be  proved,  and  have  carried  its  provisions  into  effect,  as  a 

1  Bates  V.  Heard,  Toth.  66 ;  1  Dick.  4;  Tucker  v.  Phipps,  3  Atk.  360 
Hayne  v.  Hayne,  1  Dick.  18;  Eyton  v.  Eyton,  2  Vern.  280;  Pr.  Cb.  116 
Dalstoii  v.  Coatsworth,  1  P.  Wms.  731 ;  Woodroff  v.  Burton,  1  P.  Wms 
734;  Saltern  v.  Melhuish,  Amb.  249;  Cowper  v.  Cowper,  2  P.  AVms.  748 
Gartside  v.  Radcliffe,  1  Ch.  Cas.  292  ;  Hunt  v.  Mathews,  1  Vern.  408 
Wardour  i'.  Beresford,  id.  452 ;  Downes  v.  Jennings,  32  Beav.  290 ;  Ran- 
som V.  Rumsey,  2  Vern.  561 ;    1  P.  AVms.  733 ;    Hampden  v.  Hampden, 
3  Bro.  P.  C.  550;  1  P.  Wms.  733;  Spencer  v.  Smith,  1  N.  C.  C.  75;  Mid- 
dleton  V.  Middleton,  IJ.  &  W.  99 ;  Wood  v.  Abrey,  3  Mod.  423 ;  Floyer 
1-.  Sherrard,  Amb.  18;  Coles  v.  Trecothick,  9  Ves.  246  ;  Law  v.  Barchard, 
8  Ves.  133;  White  v.  Damon,  7  Ves.  35;  Moth  r.  Atwood.  5  Ves.  845; 
Stephens  v.  Bateman,  1  Bro.  Ch.  22  ;  Griffith  v.  Spratley,  2  id.  179. 

2  Ward  /'.  Webber,  1  Wash.  (Va.)  274. 

3  Morningstar  v.  Selby,  15  Ohio,  345;  Gaines  v.  Chew,  2  How.  345; 
Gaines  v.  Hennen,  24  How.  553. 

260 


CHAP.   VI.]  IGNORANCE   AND   MISTAKE.  [§  184. 

court  of  probate  would  have  done  if  the  will  had  been  pro- 
duced and  regularly  administered.' 

§  184.  If  a  party  in  ignorance  and  mistake  of  his  rights 
and  interests  execute  a  conveyance,  although  no  fraud  is 
practised  upon  him,  a  court  of  equity  will  relieve  against 
the  instrument;  for  it  is  against  good  conscience  to  take 
advantage  of  one's  ignorance  to  obtain  his  property. ^  Tlius, 
if  an  heir,  in  ignorance  of  the  value  of  his  inheritance,^  or 
in  ignorance  that  some  legacies  or  devises  had  lapsed,* 
should  convey  his  interest  for  an  inadequate  consideration, 
equity  would  convert  the  purchaser  into  a  trustee.  And  if 
the  purchaser  should  have  full  knowledge,  or  should  stand 
in  any  confidential  relation,  or  should  practise  the  slightest 
art  to  mislead  or  conceal,  the  equities  would  of  course  be 
much  stronger  against  the  transaction;^  but  these  circum- 
stances are  not  necessary  to  avoid  the  conveyance,  for  relief 
will  be  granted  where  both  parties  are  in  a  mutual  state  of 
ignorance,  or  are  laboring  under  the  same  mistake.^  It  is 
to  be  observed,  however,  that  the  ignorance  or  mistake  which 
entitles  a  party  to  relief  must  be  as  to  some  matter  of  fact ; 

1  Bailey  v.  Stiles,  1  Green,  Ch.  220 ;  Allison  v.  Allison,  7  Dana,  90  ; 
Legare  v.  Ashe,  1  Bay,  464;  Meade  c.  Langdon,  cited  22  Vt.  59;  Buchanan 
r.  Matlock,  8  Humph.  390.  In  New  York,  the  matter  is  regulated  by 
statute,  and  courts  of  equity  or  the  Supreme  Court  has  exclusive  jurisdic- 
tion in  case  of  a  lost  or  spoliated  will.  Bowen  v.  Idley,  6  Paige,  40;  Bulk- 
ley  V.  Redmond,  2  Brad.  Sur.  281. 

2  Bingham  r.  Bingham,  1  Ves.  126;  Ramsden  v.  Hylton,  2  Ves.  394; 
Turner  r.  Turner,  2  Ch.  R.  81;  Dunnage  *•.  White,  1  Swanst.  137;  Naylor 
V.  Wynch,l  S.  &  S.  564;  Evans  v.  Llewellyn,  2  Bro.  Ch.  150;  1  Cox,  333; 
Gossmour  v.  Pigge,  8  Jur.  526;  McCarthy  v.  Decaix,  2  R.  &  M.  614; 
lluguenin  v.  Baseley,  14  Ves.  273;  Ilore  r.  Beecher,  12  Sim.  4Q')\  Mar- 
shall /•.  Collett,  1  Y.  &  Col.  Exch.  238 ;  Midland  Great  Western  Ry.  r. 
John.son,  6  H.  L.  Cas.  811. 

8  Beard  v.  Campbell,  2  A.  K.  :\Iarsh.  125;  Tyler  r.  Black,  13  How. 
231. 

*  Pusey  r.  Desbouvrie,  3  P.  Wms.  316. 

6  Gossmour  r.  Pigge,  13  L.  J.  Ch.  322;  Tyler  v.  Black,  13  How.  231; 
McCarthy  v.  Decaix,  2  R.  &  M.  222 ;  Cocking  >:  Pratt,  1  Ves.  400. 

^  Ibid.;  Lansdowne  c.  Lausdowne,  2  J.  Ik  W.  205;  Mose.  364;  Willan 
V.  Willan,  16  Ves.  72. 

261 


§  184.]  CONSTRUCTIVE   TRUSTS.  [CHAP.   VI. 

and  that  mistake  or  ignorance  of  the  law,  or  of  the  conse- 
quences that  will  follow  from  the  conveyance,  will  not  en- 
title a  party  to  relief.^  (a)  This  rule  is  established  by  reason 
of  the  great  danger  of  abuse  that  would  arise  if  parties  were 
allowed  to  reclaim  their  property  upon  allegations  that  they 
were  ignorant  of  the  law,  or  mistook  the  consequences  of 
their  acts.^  Thus,  if  a  party  has  full  knowledge  of  all  the 
facts,  and  intends  to  do  the  acts  or  execute  the  instruments 
in  question  in  the  form  in  which  they  are  executed,  he  can- 
not have  relief  because  he  was  ignorant  of  or  mistook  the 
law,  or  because  the  consequences  which  legally  and  naturally 
follow  from  the  transaction  are  different  from  what  he 
expected.  3  But  if  there  is  a  mistake  in  the  instrument 
itself,  and  it  contains  what  was  not  agreed  or  intended, 
or  does  not  contain  all  that  was  agreed  and  intended,  to  be 
in  the  writing,  equity  will  give  relief.*     And  if  there  are 

1  Marshall  v.  Collett,  1  Y.  &  C.  Exch.  238 ;  Midland  Great  Western 
Ry.  V.  Johnson,  6  H.  L.  Cas.  811;  Hunt  v.  Rousmaniere,  1  Pet.  1;  Brown 
V.  Ingham,  1  Bro.  Ch.  92;  PuUen  r.  Ready,  2  Atk.  591;  Magniac  v. 
Thompson,  2  Wall.  Jr.  209  ;  Campbell  r.  Carter,  U  111.  286;  Hall  v.  Read, 
2  Barb.  Ch.  503  ;  Brown  v.  Armistead,  6  Rand.  594 ;  Hinchman  v.  Emans, 
Saxt.  100;  Freeman  v.  Cook,  6  Ired.  Eq.  378;  Gunter  v.  Thomas,  1  Ired. 
Eq.  199 ;  Crofts  v.  Middleton,  2  K.  &  J.  194 ;  Wintermute  v.  Snyder, 
2  Green,  Ch.  498;  Farley  v.  Bryant,  32  Maine,  474  ;  Freeman  v.  Curtis, 
51  id.  140;  Fergersou  v.  Fergerson,  1  Ga.  Dec.  135. 

2  Bilbie  v.  Lumley,  2  East,  472 ;  Lyon  v.  Richmond,  2  Johns.  Ch.  51 ; 
Shotwell  V.  Murray,  1  id.  512 ;  Storrs  v.  Barker,  G  id.  169  ;  Proctor  v. 
Thrall,  22  Vt.  262. 

3  Storrs  r.  Barker,  6  Johns.  Ch.  169;  Lyon  v.  Saunders,  23  Miss.  124; 
Shafer  v.  Davis,  13  111.  395 ;  Emmett  v.  Dewhirst,  8  Eng.  L.  &  Eq.  83 ; 
Hunt  r.  Rousmaniere,  1  Pet.  1 ;  Farley  v.  Bryant,  32  Maine,  474 ;  Free- 
man V.  Curtis,  51  id.  140 ;  Mellish  v.  Robertson,  25  Vt.  608 ;  Gilbert  v. 
Gilbert,  9  Barb.  532  ;  Arthur  v.  Arthur,  10  Barb.  9. 

*  Heacock  i-.  Fly,  14  Pa.  St.  541;   Larkius  v.  Biddle,  21  Ala.  256; 

(a)  AUcard  v.  Skinner,  36  Ch.  D.  intervening  rights  are   affected,   a 

145;   Fry  v.  Lane,  40  Ch.  D.  312;  court   of    equity  may   direct    such 

Goode  V.  Riley,  153  Mass.  585.     In  discharge  to  be  cancelled  and  the 

Massachusetts,  if  by  mistake  a  dis-  assignment  substituted.      Short  w. 

charge    of    a    mortgage    is    taken  Currier,  153  Mass.  182. 
instead  of  an  assignment,  and  no 
262 


CHAP.   VI.]  IGNORANCE   AND   MISTAKE.  [§  185. 

any  other  ingredients  in  the  case,  as  if  there  is  joined  to  a 
party's  ignorance  or  mistake  of  the  law  some  practice  upon 
him  to  lead  him  into  the  bargain,^  or  if  the  other  party, 
knowing  his  ignorance  or  mistake,  still  suffers  him  to  go  on 
without  information, 2  equity  will  give  relief.  If  there  are 
any  exceptions  to  the  rule  that  ignorance  or  mistake  of  the 
law  is  not  a  ground  for  relief,  they  are  few  in  number,  and 
have  something  peculiar  in  their  character,  which  calls  in 
other  elements  of  equity,  or  they  stand  upon  some  urgent 
pressure  of  circumstances.  ^ 

§  185.  When  a  conveyance  is  made  to  compromise  claims 
which  the  parties  deem  doubtful,*  and  especially  if  the  con- 
veyance has  for  its  object  the  settlement  of  family  contro- 
versies,^ courts  will  support  it  if  possible,  although  founded 
in  ignorance  or  mistake  of  facts,  as  well  as  of  law;  provided 
no  fraud  has  been  used  to  mislead  and  deceive  the  party 
executing  the  conveyance.^ 

Wyche  r.  Green,  11  Ga.  169;  IG  Ga.  49;  Moser  r.  Lebenguth,  2  Rawle, 
428 ;  Fitzgerald  v.  Peck,  4  Litt.  127. 

1  1  Story's  Eq.  Jur.  §  133. 

2  Cook  iJ.  Nathan,  16  Barb.  342;  Langstaffe  r.  Fenwick,  10  Ves.  405. 

*  State  V.  Paup,  13  Ark.  135;  Hunt  v.  Rousmaniere,  1  Pet.  1;  1  Story's 
Eq.  Jur.  §§  116,  137. 

*  Brown  c.  Pring,  1  Ves.  407;  Cann  r.  Cann,  1  P.  Wms.  727;  Naylor 
V.  Winch,  1  Sim.  &  S.  555 ;  Goodman  v.  Sayers,  2  J.  &  W.  263 ;  Picker- 
ing V.  Pickering,  2  Beav.  91;  Stewart  v.  Stewart,  6  CI.  &  Fin.  699 ;  Gib- 
bons V.  Caunt,  4  Ves.  849;  Neale  v.  Neale,  1  Keen,  672;  Att.  Gen.  r. 
Boucherett,  25  Beav.  110;  Wiles  v.  Greshon,  5  De  G.,  M.  &  G.  770:  Brad- 
ley *'.  Chase,  22  Maine,  511  ;  Richardson  v.  Eyton,  15  Eng.  L.  &  Eq.  51  ; 
2  De  G.,  M.  &  G.  79. 

6  Currie  v.  Steele,  2  Sandf.  542 ;  Stone  r.  Godfrey,  27  Eng.  L.  &  Eq. 
318 ;  5  De  G.,  M.  &  G.  76  ;  Gordon  r.  Gordon,  3  Swanst.  463,  476 ;  Stock- 
ley  r.  Stockley,  1  V.  &  B.  29 ;  Bellamy  v.  Sabine,  2  Phill.  425;  Stapilton 
r.  Stapilton,  1  Atk.  10;  3  Lead.  Cas.  Eq.  084;  Cann  *•.  Cann,  1  P.  Wms. 
727  ;  Pers.se  r.  Persse,  1  West,  110;  7  CI.  &  Fin.  279;  Cory  r.  Cory, 
1  Vos.  19;  Heap  v.  Tonge,  7  Eng.  L.  &  Eq.  189  ;  9  Hare,  90  ;  Leonard  c. 
Leonard,  2  Ball  &  B.  171 ;  Dunnage  v.  White,  1  Swanst.  137;  Harvey  v. 
Cook,  4  Russ.  34;  Jodrell  v.  Jodrell,  9  Beav.  45  ;  Frank  v.  Frank,  1  Ch. 
Cas.  84. 

6  Smith  V.  Piucombe,  10  Eng.  L.  &  Eq.  50  ;  3  Mac.  &  G.  653  ;  C;  roves 

263 


§  186.]  CONSTRUCTIVE   TRUSTS.  [CIIAP.    VI. 

§  186.  If  a  deed  is  drawn  by  accident  or  mistake  to  em- 
brace property  not  intended  by  the  parties,  equity  will  con- 
strue the  grantee  to  be  a  trustee,  and  will  execute  the  trust 
by  reforming  the  deed  or  by  ordering  a  reconveyance.  It 
would  be  against  natural  right  to  allow  a  person  to  hold 
property  which  he  never  intended  to  buy,  and  which  has 
come  to  him  by  such  mistake.^  If  by  a  mistake  of  a  third 
party  land  is  deeded  to  the  husband  instead  of  the  wife,  as 
it  should  have  been  by  reason  of  the  consideration  and  the 
agreement,  the  husband  holds  in  trust  for  her.^  But  courts 
require  the  most  full  and  satisfactory  proof  before  they  will 
vary  by  parol  evidence  the  contract  between  the  parties,  as 
written  and  signed  by  them,^  and  will  not  give  relief  unless 
the  mistake  is  common  to  both  parties,*  except  the  case  is 
such  that  the  parties  may  be  restored  to  their  original  situa- 
tion.^ But  fraud  on  one  party  and  mistake  on  the  side  of 
the  other  is  a  good  cause  for  setting  aside  a  transaction.^ 

V.  Perkins,  6  Sim.  576  ;  Hoge  v.  Hoge,  1  Watts,  163  ;  Dunnage  v.  White, 
1  Swanst.  137  ;  Evans  v.  Llewellyn,  1  Cox,  333  ;  2  Bro.  Ch.  150  ;  Towns- 
hend  v.  Stangroom,  6  Ves.  333  ;  Chesterfield  v.  Janssen,  2  Ves.  155;  Or- 
mond  V.  Hutchinson,  13  Ves.  51  ;  Henly  v.  Cook,  4  Russ.  34;  Staiuton 
V.  Carson  Co.,  6  Jur.  (n.  s.)  360  ;  Ashurst  v.  I\Iill,  7  Hare,  502;  Lawton 
V.  Campion,  18  Beav.  87  ;  Bennett  v.  Merriman,  6  Beav.  360 ;  Hogton  v. 
Hogton,  15  Beav.  278  ;  11  Eng.  L.  &  Eq.  134. 

1  Exeter  v.  Exeter,  3  M.  &  Cr.  321 ;    Lindo  v.  Lindo,  1  Beav.  496 
Ramsden  v.  Hylton,  2  Ves.  304  ;  Beaumont  v.  Bramley,  T.  &  R.  52 
Underhill  v.  Horwood,  10  Ves.  225  ;  Canedy  v.  Marcy,  13  Gray,  373 
Brov?n  v.  Laraphear,  35  Vt.  252  ;  Green  v.  Morris,  1  Beasley,  370;  Rich- 
ardson V.  Bleight,  8  B.  Mon.  580;  Whaley  v.  Eliot,  1  A.  K.  Marsh.  343; 
Belknap  v.  Scaley,  2  Duer,  570 ;  Gray  v.   Woods,  4  Blackf.  432 ;  Peters 
V.  Goodrich,  3  Conn.  146;  Oliver  v.  Ins.    Co.,  2  Curtis,  277 ;  Tilton  v. 
Tilton,  9  N.  H.  385 ;  Farley  v.  Bryant,  32  Maine,  474 ;  Loss  v.  Obry,  22 
N.  J.  Eq.  52. 

2  Lide  V.  Law,  27  Kans.  242. 

8  Sawyer  v.  Hovey,  3  Allen,  331  ;  Gillespie  v.  Moore,  2  Johns.  Ch.  585  ; 
Andrews  v.  Essex  Ins.  Co.,  3  Mason,  10  ;  1  Story's  Eq.  Jur.  §  157. 

^  Andrews  v.  Essex  Ins.  Co.,  3  Mason,  10  ;  Bradford  v.  Romney,  30 
Beav.  431. 

6  Garrard  v.  Fankell,  30  Beav.  445;  Harris  v.  Pepperell,  L.R.  5  Eq.  1. 

6  Bloodgood  V.  Sears,  64  Barb.  76  ;  Welles  v.  Yates,  44  N.  Y.  525. 
264 


CHAP.   VI.]  INADEQUACY   OF   CONSIDERATION.  [§  187. 

§  187.  Lord  Hardwicke,  in  his  analysis  of  the  various 
kinds  of  fraud,  stated  one  species  to  be  "fraud  apparent 
from  the  intrinsic  value  and  subject  of  the  bargain,  such  as 
no  man  in  his  senses,  and  not  under  delusion,  would  make 
on  the  one  hand,  and  as  no  honest  or  fair  man  would  accept 
on  the  other.  "^  The  meaning  of  this  is,  that  fraud  may  be 
proved  by  the  inadequacy  of  the  consideration  paid  for 
property  by  the  purchaser  on  the  one  hand,^  or  the  consid- 
eration may  be  so  extravagantly  large  on  the  other,^  as  to 
show  that  the  purchaser  was  imposed  upon.  It  is  to  be 
observed,  however,  that  the  consideration  alone,  whether  too 
large  or  too  small,  cannot  of  itself  prove  fraud  in  a  trans- 
action, for  the  reason  that  a  mere  voluntary  conveyance, 
without  any  consideration,  is  good  and  valid  between  the 
parties.  On  the  same  ground  mere  inadequacy  of  considera- 
tion will  not  vitiate  a  deed,*  and  so  if  a  party,  knowing  that 
the  consideration  is  inadequate,  enters  into  the  agreement 
with  his  eyes  open,  he  cannot  have  relief.^  It  is  only  where 
some  fraud  is  practised  upon  a  party  that  the  consideration 

1  Chesterfield  v.  Janssen,  2  Ves.  155;  Harvey  v.  Mount,  8  Beav.  439. 

2  Ibid.;  Rosevelt  v.  Fulton,  2  Cow.  129  ;  McDonald  v.  Neilson,  2  Cow. 
139. 

8  Cockell  ».  Taylor,  15  Beav.  103. 

*  Pickett  V.  Loggou,  14  Ves.  215  ;  Reynell  v.  Sprye,  8  Hare.  222  ;  1  De 
G.,  M.  &  G.  600;  Howard  v.  Edgell,  17  Vt.  9  ;  Osgood  r.  Franklin,  2 
Johns.  Ch.  1 ;  14  Johns.  527  ;  Butler  v.  Haskell,  4  Des.  651  ;  Erwin  v. 
Perham,  12  How.  197  ;  Judge  v.  Wilkins,  19  Ala.  765  ;  McCorraick  v. 
Malin,  5  Blackf.  509;  Delafield  v.  Anderson,  7  S.  &  M.  630:  Farmers 
Bank  v.  Douglass,  11  S.  &  M.  4n9  ;  Robinson  v.  Robinson,  4  Md.  Ch.  183 ; 
Powers  V.  Hale,  5  Foster,  145 ;  Dun  i'.  Chambers,  4  Barb.  376 ;  Mann  v. 
Betterly,  21  Vt.  326;  Green  v.  Thompson,  2  Ired.  Eq.  365;  White  v. 
Flora,  2  Overt.  426  ;  Forde  v.  Ilerron,  4  Munf.  316  ;  Holmes  i'.  Fresh,  9 
^liss.  201;  Young  v.  Frost,  5  Gill,  287;  Coster  v.  Griswold,  4  Edw.  364; 
Westervelt  v.  IVIatheson,  1  Hoff.  37;  Davidson  v.  Little,  27  Penn.  St.  251; 
Coles  V.  Trecothick,  9  Ves.  246  ;  INIoth  v.  Atwood,  5  Ves.  845  ;  White  u. 
Damon,  7  Ves.  35:  Low  v.  Barchard,  8  Ves.  133;  Griffith  v.  Spratley,  2 
Bro.  Ch.  179  ;  Stephens  v.  Bateman,  1  id.  22 ;  Wood  v.  Abrey,  3  :\Iadd. 
423  ;  Floyer  v.  Sherrard,  Amb.  18;  Harrison  v.  Guest,  6  De  G.,  M.  &  G. 
424;  8  H.  L.  Cas.  481  ;  Denton  r.  Donner,  23  Beav.  285;  Eyre  v.  Potter, 
15  How.  60  ;  Cliaires  v.  Brady,  10  Fla.  133. 

6  Willis  i;.  Jcrnegan,  2  Atk.  251. 

265 


§  187.]  CONSTRUCTIVE   TRUSTS.  [CHAP.   VI. 

of  a  conveyance  is  material.^  If  it  appears  that  a  person 
intended  to  convey  his  property  for  a  consideration  reason- 
ably proportionate  to  its  value,  but  that  in  fact  the  consid- 
eration received  was  grossly  inadequate,  then  a  court  of 
equity  would  infer  that  some  fraud  or  deceit  had  been  prac- 
tised upon  him; 2  or,  as  Lord  Thurlow  said,  "where  the 
inadequacy  of  the  consideration  is  so  gross  and  manifest 
that  it  is  impossible  to  state  it  to  a  man  of  common  sense 
without  producing  an  exclamation  at  the  inequality  of  it,^ 
the  court  will  infer  from  that  fact  alone,  that  there  must 
have  been  such  imposition  or  oppression  in  the  transaction, 
or  such  a  want  of  common  understanding  in  the  party,  as  to 
amount  to  a  case  of  fraud,  from  which  no  advantage  or  bene- 
fit ought  to  be  derived  by  the  other  party. "  *  Other  authori- 
ties say  that  courts  will  act  on  the  fact  alone  of  inadequacy 
of  consideration  when  it  is  so  gross  and  manifest  as  to  shock 
the  conscience.^  This  principle  is  loose  enough,^  if  it  is  a 
principle,  and  of  course  every  case  would  depend  upon  its 
own  facts  and  circumstances.  Where  there  are  suspicious 
circumstances   connected   with   the   fact   of    inadequacy  of 

1  Huguenin  v.  Baseley,  14  Ves.  273  ;  Wormack  v.  Rogers,  9  Ga.  60; 
How  V.  Weldon,  2  Ves.  516;  Mann  v.  Betterly,  21  Vt.  326. 

2  Gwynne  v.  Heaton,  1  Bro.  Ch.  8  ;  Baugh  v.  Price,  3  "Wilson,  320 ; 
Eyre  v.  Potter,  15  How.  60 ;  Butler  v.  Haskell,  4  Des.  652  ;  Barnett  v. 
Spratt,  4  Ired.  Eq.  171 ;  "VVright  v.  Wilson,  4  Yerg.  294  :  Juzan  v.  Toul- 
min,  9  Ala.  692. 

8  Gwynne  v.  Heaton,  1  Bro.  Ch.  8;  Hamet  v.  Dundass,  4  Barr,  178. 

*  Heathcote  v.  Paignon,  2  Bro.  Ch.  175  ;  Underhill  v.  Horwood,  10 
Ves.  219;  Ware  v.  Horwood,  14  Ves.  28  ;  Stilwell  v.  Wilkinson,  Jac.  282  ; 
Barnett  v.  Spratt,  4  Ired.  Eq.  171. 

6  Horsey  v.  Hough,  38  Md.  130;  Coles  v.  Trecothick,  9  Ves.  246  ;  Os- 
good  V.  Franklin,  2  Johns.  Ch.  1 ;  14  Johns.  .527  ;  Gwynne  v.  Heaton, 
1  Bro.  Ch.  9;  Underhill  v.  Horwood,  10  Ves.  209;  Peacock  v.  Evans,  16 
Ves.  512;  Wright  v.  Wilson,  2  Yerg.  294:  Deaderick  v.  Watkins,  8 
Humph.  520;  Stilwell  v.  Wilkinson,  Jac.  280;  Copis  v.  Middleton,  2 
Madd.  409  ;  Howard  v.  Edgell,  17  Vt.  9;  Butler  v.  Haskell,  4  Des.  652; 
Eyre  v.  Potter,  15  How.  60;  Gist  v.  Frazier,  2  Litt.  118;  Seymour  v. 
Delancy,  6  Johns.  Ch.  222;  Juzan  v.  Toulmin,  9  Ala.  692;  James  v. 
Morgan,  1  Lev.  Ill ;  Rice  v.  Gordon,  11  Beav.  215;  Booker  v.  Anderson, 
35  111.  66. 

«  Gibson  v.  Jeyes,  6  Ves.  273 ;  Warfield  v.  Ross,  38  Md.  85. 
266 


CnAI'.   VI.]  CONTRACTS  WITH  HEIRS.  [§  188. 

price,  as  where  the  parties  stand  in  a  fiduciary  relation  to 
each  other,'  or  one  oi'  them  is  in  distress,^  or  is  ignorant,^  or 
is  weak-minded  and  imbecile,*  inadequacy  of  consideration 
will  become  very  pertinent,  and  oftentimes  conclusive  evi- 
dence that  fraud  and  undue  influence  have  been  used  to  bring 
about  a  bargain  advantageous  to  the  one  side  and  ruinous  to 
the  other. 

§  188.  Immediately  connected  with  this  subject  is  the  sale 
by  an  heir  or  reversioner  of  his  expectancy  or  reversionary 
interest.  It  is  said  that  "  it  is  incumbent  upon  those  who 
deal  with  an  expectant  heir,  relative  to  his  reversionary 
interest,  to  make  good  the  bargain;  that  is,  to  be  able  to 
show  that  a  full  and  adequate  consideration  was  paid.  In 
all  such  cases  the  issue  is  upon  the  adequacy  of  the  price. 
No  proof  of  fraud  is  necessary ;  and  the  relief  is  given  upon 
general  principles  of  mischief  to  the  public,  without  requir- 
ing particular  evidence  of  actual  imposition."^  Such  a  pur- 
chase is  a  constructive  fraud,  and  the  purchaser,  if  a 
stranger,  will  be  compelled  to  account  and  to  give  up  the 
bargain,  if  found  to  be  advantageous.^  A  sale  by  an  heir 
will  not  be  supported  against  him  unless  it  is  perfectly  fair 

^  Ilerne  v.  Meeres,  1  Vern.  456  ;  Gibson  v.  Jeyes,  6  Ves.  2G6  ;  ShaefEer 
V.  Sleade,  7  Blackf.  178;  Brooke  r.  Berry,  2  Gill,  S3  ;  "Wright  v.  "Wilson, 
2  Yerg.  291 ;  Butler  v.  Haskell,  4  Des.  680. 

2  Cockell  V.  Taylor,  15  Beav.  103;  "Warfield  v.  Ross,  38  Md.  85. 

*  Heme  v.  Meeres,  1  Vern.  456  ;  Pickett  v.  Loggon,  14  "\"es.  215  ;  Mur- 
ray V.  Palmer,  2  Sch.  &  Lef.  477;  Gwynne  v.  Ileaton,  1  Bro.  Ch.  1; 
"Wood  V.  Abrey,  3  Madd.  417;  McKinney  v.  Pinkard,  2  Leigh,  149; 
Gasque  v.  Small,  2  Strob.  Eq.  72  ;  Esham  v.  Lamar,  10  B.  Mon.  43;  But- 
leru.  Haskell,  4  Des.  680;  Cookson  v.  Richardson,  69  111.  137. 

*  Clarkson  v.  Hanway,  2  P.  Wms.  203 ;  Gartside  r.  Isherwood,  1  Bro. 
Ch.  558;  Stanhope  r.  Toppe,  2  Bro.  P.  C.  183  ;  McArtee  c.  Engart,  13  111. 
242;  Wormack  i:  Rogers,  9  Ga.  60;  How  c.  "Weldon,  3  Ves.  517;  Addis 
t'.  Campbell,  4  Beav.  401 ;  Ilolden  i:  Crawford,  1  Atk.  390  ;  Maun  r.  Bet- 
terley,  21  Vt.  326;  Crane  v.  Conkliu,  Saxt.  346;  Brooke  v.  Berry,  2  Gill, 
83;  Rumph  r.  Abercrombie,  12  Ala.  64. 

6  Sir  AVilliara  Grant,  in  Gowland  v.  De  Faria,  17  Ves.  20. 

«  Jenkins  /•.  Pye,  12  Pet.  258 ;  Call  v.  Gibbons,  3  P.  Wms.  290 ;  Bar- 
nardiston  v.  Lingood,  2  Atk.  133;  "Walmesley  v.  Booth,  id.  28;  Gwynne 
t'.  Heaton,  1  Bro.  Ch.  10. 

267 


§  188.]  CONSTRUCTIVE   TRUSTS.  [CHAP.   VI. 

in  every  respect,  and  beyond  suspicion,  and  for  an  adequate 
price.  ^  The  burden  is  upon  the  purchaser  to  show  the 
fairness  of  the  transaction  and  the  sufficiency  of  the  consid- 
eration, and  not  upon  the  heir  to  impeach  either  the  one  or 
the  other; 2  and  it  is  said  that  it  is  immaterial  that  the  heir 
is  of  mature  age.^  In  this  country  the  rule  may  be  stated 
with  still  more  severity,  that  the  sale,  by  an  heir,  of  his 
expectancy  during  the  life  of  the  ancestor,  is  contrary  to 
public  policy  and  is  void,  unless  such  sale  is  assented  to  by 
the  ancestor,  and  supported  by  an  adequate  considera- 
tion.* (a)  If,  however,  the  sale  is  at  auction,  it  will  be  some 
proof  of  fairness  and  sufficiency  of  price, ^  and  if  the  sale  is 
made  with  the  knowledge  and  assent  of  the  ancestor  it  will 
be  good.^  (5)     But  it  seems  that  the  rule  is  confined  to  those 

1  Kuott  V.  Hill,  1  Vern.  167;  Westerfield  v.  Janssen,  2  Ves.  125; 
1  Lead.  Cas.  Eq.  428-494,  Eng.  and  Am.  notes ;  Bawtree  v.  Watson,  3  M. 
&  K.  339 ;  Portmore  v.  Taylor,  4  Sim.  182  ;  Peacock  v.  Evans,  16  Ves. 
512  ;  Newton  v.  Hunt,  5  Sim.  54 ;  Talbot  v.  Staniforth,  1  John.  &  H. 
484;  Foster  v.  Roberts,  29  Beav.  467;  Jones  v.  Ricketts,  31  Beav.  130; 
Salter  v.  Bradshaw,  26  Beav.  161 ;  Bm-y  v.  Oppenheim,  id.  594 ;  King  v. 
Hamlet,  4  Sim.  223;  2  M.  &  K.  456;  Denton  v.  Donner,  23  Beav.  285; 
Hannah  v.  Hodgson,  30  Beav.  19  ;  St.  Albyn  v.  Harding,  27  Beav.  11; 
Nesbitt  V.  Berridge,  32  Beav.  282  ;  Perfect  v.  Lane,  31  L.  J.  Ch.  489  ; 
Edwards  v.  Burt,  2  De  G.,  M.  &  G.  55;  Aldborough  v.  Frye,  7  CI.  &  Fin. 
436. 

2  Gowland  v.  De  Faria,  17  Ves.  24;  Coles  v.  Trecothick,  9  Ves.  246; 
Davis  I'.  Marlborough,  2  Swanst.  141 ;  Portmore  i\  Taylor,  4  Sim.  209 ; 
Shelley  v.  Nash,  3  Madd.  236  ;  Nimmo  v.  Davis,  7  Tex.  260 ;  Poor  v. 
Hazleton,  15  N.  H.  564. 

8  Davis  Z7.  Marlborough,  2  Swanst.  146  ;  Evans  v.  Cheshire,  Belt,  Supp. 
305;  Addis  v.  Campbell,  4  Beav.  401. 

4  Varick  v.  Edwards,  1  Hoff.  383  :  Boynton  w.  Hubbard,  7  Mass.  112; 
Fitch  v.  Fitch,  8  Pick.  480  ;  Trull  r.  Eastman,  3  Met.  121 ;  Poor  v.  Hazle- 
ton, 15  N.  H.  564;  Nimmo  r.  Davis,  7  Tex.  266;  Jenkins  v.  Pye,  12  Pet. 
257 ;  Davidson  v.  Little,  22  Penn.  St.  252. 

6  Fox  V.  Wright,  6  Madd.  Ill ;  Shelley  v.  Nash,  3  Madd.  232 ;  New- 
man V.  Meek,  1  Freem.  Ch.  441 ;  Erwin  v.  Parham,  12  How.  197. 

«  Fitch  V.  Fitch,  8  Pick.  480 ;  Trull  v.  Eastman,  3  Met.  121 ;  Nimmo 

(a)  See  Aylesford  v.  Morris,  L.  Hale  ;;.  Hollon  (Texas),  39  S.  W. 

R.  8  Ch.  484  ;  Fry  v.  Lane,  40  Ch.  287. 

D.  321 ;    James   v.  Kerr,  id.   460 ;  (&)  Where  the  heir  deals,  not  be- 

McClure  v.  Raben,   133   Ind.  507;  hind  his  father's  back,  but  with  his 
268 


CHAP.   VI.]  MENTAL  WEAKNESS.  [§  189. 

expectancies  that  combine  the  relation  of  heir  with  that  of 
reniainder-nian  and  reversioner.  Jf  the  expectant  is  not 
heir,  but  is  simi)ly  entitled  to  a  remainder  or  reversion  by 
virtue  of  some  instrument  or  settlement,  he  may  sell  and 
assign  his  future  interest,  and  such  sale  will  not  be  avoided 
unless  some  of  the  common  rules  of  equity  are  violated  by 
the  purchaser.  In  such  cases  there  is  no  fraud  ui)on  parents 
or  third  persons,  consequently  there  is  nothing  contrary  to 
public  policy  in  such  i)urcha8e8.^ 

§  189.  Another  kind  of  constructive  trust  arises  from  the 
mental  incapacities  of  parties  to  enter  into  contracts.  Thus 
a  non  compos  mentis  cannot  make  a  binding  contract. ^  The 
deed  of  such  person  is  either  absolutely  void,  or  at  least 
voidable,^  and  equity  will  give  relief  by  declaring  a  party 

V.  Davis,  7  Tex.  266;  King  v.  Hamlet,  2  M.  &  K.  450 ;  3  CI.  &  ¥.  218. 
In  Ohio,  however,  it  has  been  held  that  a  contract  is  invalid  by  which  a 
son  released  to  his  father,  in  considenition  of  an  advancement,  all  his  ex- 
pectancies upon  the  father's  estate.  Xeedles  c.  Needles,  7  Ohio  St.  432. 
The  case  is  not  sustained  by  other  authorities,  and  seems  not  to  rest  upon 
the  principles  applicable  to  such  transactions. 

1  Cribbins  v.  Markwood,  13  Grat.  495;  Dunn  v.  Chambers,  4  Barb. 
376 ;  Davidson  v.  Little,  22  Penn.  St.  252  ;  Wiseman  v.  Beake,  2  Vern. 
121  ;  Cole  v.  Gibbons,  3  P.  Wms.  290;  Barnardiston  v.  Lingood,  2  Atk. 
133  ;  Bowers  v.  Heaps,  3  V.  &  B.  117 ;  Davis  v.  Marlborough,  2  Swanst. 
130;  Addis  v.  Campbell,  4  Beav.  401  ;  Nickolls  v.  Gould,  2  Yes.  422; 
Henley  v.  Axe,  2  Bro.  Ch.  17;  2  Swanst.  141;  Griffith  v.  Spratley,  2  Bro. 
Ch.  179;  1  Cox,  383;  Moth  v.  Atwood,  5  Ves.  845;  Montesquieu  v.  San- 
dys, 18  Ves.  302.  The  peculiar  character  and  position  of  sailors  call 
for  the  interposition  of  courts  when  they  are  defrauded,  and  when  one 
has  sold  his  prize-money  for  a  small  sum,  the  Master  of  the  Rolls  said 
that  it  was  reasonable  to  regard  them  as  young  heirs,  and  to  relieve  them 
accordingly.     How  v.  Weldon,  2  Ves.  515. 

2  Chesterfield  r.  Janssen,  2  Ves.  155. 

'  Allis  V.  Billings,0  Met.  415;  Breckenridge  v.  Ormsby,  1  J.  J.  IMarsh. 
239;  Price  r.  Berrington,  3  Mac.  &  G.  486  ;  Molton  v.  Camroux,  2  Exch. 
487;  4  Exch.  17;  De  Silver's  Est.,  5  Rawl.  Ill;  Bensell  v.  Chancellor, 
5  AMiart.  376;  Beals  v.  Lee,  10  Barr.  56. 

sanction  and  assistance,  and  has  all  into  without  such  paternal  protec- 

the  protection  that   his  father  can  tion.     O'Rorke  r.  Bolingbroke,  2  A. 

give  him,  he  is  not  entitled  to  relief  C.  814,  828. 
as  if  the  contract  had  been  entered 

269 


§  189.]  CONSTRUCTIVE   TRUSTS.  [CHAP.   VI. 

taking  under  such  a  conveyance  to  be  a  trustee,  and  by 
ordering  him  to  execute  a  reconveyance.^  Whether  a 
person  has  capacity  enough  to  make  a  contract,  is  always  a 
question  of  fact  in  each  particular  case ;  for  mere  weakness 
of  mind,  not  amounting  to  idiocy  or  insanity,  is  no  ground 
for  avoiding  a  contract.  Courts  cannot  measure  the  extent 
of  a  party's  understanding.  If,  therefore,  a  person  is  not 
an  idiot  nor  an  insane  person,  he  may  enter  into  contracts, 
although  he  may  be  of  a  low  order  of  intelligence  and  of 
weak  reasoning  powers. ^  At  the  same  time  such  persons  are 
easily  imposed  upon  and  defrauded;  and  if  it  appears  that 
one  of  the  parties  to  a  contract  is  of  weak  mind  and  feeble 
powers,  the  whole  transaction  will  be  carefully  investigated, 
and  the  conduct  of  the  person  procuring  such  contract  will 
be  closely  scrutinized ;  for  arts  and  practices  that  would  be 
perfectly  harmless  in  a  transaction  with  a  man  of  high 
intelligence  and  prudence  and  great  power  of  observing  and 
reasoning  may,  and  probably  would,  deceive  and  mislead  a 
person  of  weak  mind  and  feeble  powers,  although  not  in- 
capable of  entering  into  contracts  and  transacting  business 
generally.^  Therefore  the  weakness  of  a  party's  mind  is  a 
very  material  fact  in  determining  the  character  of  a  trans- 
action, and  if,  in  contracts  with  such  persons,  there  is  found 
the  least  art  or  stratagem,  or  any  undue  influence,  or  any 

1  Rushloyr.  Mansfield,  Toth.  42;  Mansfield's  Case,  12  Co.  123;  Addi- 
son y.  Mascall,  2  Vern.  678;  3  Atk.  110;  Price  v.  Berrington,  7  Hare, 
394;  3  Mac.  &  G.  486;  Addison  v.  Dawson,  2  Vern.  678;  Welby  v. 
T^^e]by,  Toth.  164;  Wright  r.  Booth,  id.  166;  Wilkinson  v.  Brayfield,  2 
Vern.  307;  Clark  v.  Ward,  Pr.  Ch.  150;  Ferres  v.  Ferres,  Eq.  Ab.  695; 
Att.  Gen.  v.  Parnther,  3  Bro.  Ch.  441. 

2  Osmond  v.  Fitzroy,  3  P.  Wms.  130 ;  Willis  v.  Jernegan,  2  Atk.  251 ; 
1  Story's  Eq.  Jur.§  235;  Ex  parte  Allen,  15  Mass.  58;  Hadley  v.  Latimer, 
3  Yerg.  537;  Mann  ;;.  Betterley,  21  Vt.  326;  Thomas  v.  Sheppard,  2  Mc- 
Cord,  Eq.  36 ;  Rippy  v.  Gaiit,  4  Ired.  Eq.  447  ;  Mason  v.  Williams,  3 
]\Iunf.  126;  Morrison  v.  McLeod,  2  Dev.  &  Bat.  Eq.  221 ;  Green  v.  Thomp- 
son, 2  Ired.  Eq.  365;  Bath  &  Montague's  Ca.,  3  Ch.  Cas.  107. 

8  Bridgman  v.   Green,  Wilm.  61 ;  2  Ves.  627  ;  Donnegal's  Case,  id. 
407;  Gartside  v.  Isherwood,  1  Bro.  Ch.  560  ;  Blackford  v.  Christian,  1 
Knapp,  77;  Dunn  v.  Chambers,  4  Barb.  376;  Clark  v.  Malpas,  4  De  G., 
F.  &  J.  401. 
270 


CHAP.   VI.]  MENTAL   WEAKNESS.  [§  189. 

inj^rcdicnt  of  fraud  or  suspicion  of  unfairness,  courts  will 
set  the  contract  aside,  or  convert  the  oO'cndinj^  party  into  a 
trustee.^  Upon  these  principles,  if  the  contract  is  of  an 
unusual,  unreasonable,  or  extraordinary  character,^  or  if  it 
is  without  consideration,  or  upon  an  inadequate  considera- 
tion,^  or  if  the  instrument  falsely  recites  a  consideration,^ 
or  if  there  is  actual  proof  of  undue  influence,  (a)  or  of  art 
or  circumvention,^  or  if  there  is  a  fiduciary,  confidential,  or 

J  GrifTin  v.  De  Veulle,  3  Wood.  Lect.  App.  16 ;  Nottige  v.  Prince,  2 
Gif.  240;  Longmate  v.  Ledger,  id.  157;  Baker  v.  Monk,  33  Beav.  419  5 
Boyse  v.  Rossborough,  6  II.  L.  Cas.  2;  Harding  v.  Handy,  11  Wheat. 
103 ;  Tracey  v.  Sackett,  1  Ohio  St.  54 ;  Whitehorn  v.  Ilines,  1  Munf. 
557  ;  Whelan  v.  Whelan,  3  Cow.  537;  Deatly  v.  Murphy,  3  A.  K.  Marsh. 
472;  Brogdeu  v.  Walker,  2  II.  &  J.  285;  Rumph  v.  Abercrombie,  12 
Ala.  64. 

^  Fane  v.  Devonshire,  2  Bro.  P.  C.  77  ;  Bridgman  v.  Green,  2  Ves.  G27 ; 
Dent  r.  Bennett,  7  Sim.  539;  4  M.  &  Cr.  629 ;  Malin  v.  Malin,  2  Johns. 
Ch.  238;  Bennett  v.  Vade,  2  Atk.  235;  Nantes  v.  Corrock,  9  Ves.  181; 
Willan  V.  Willan,  16  Ves.  72;  Ball  v.  Maurice,  3  Bligh  (n.  s.),  1;  1  Dow 
(N.  s.),  392. 

8  Ibid.,  Clarkson  v.  Hanway,  2  P.  Wms.  203 ;  Gartside  v.  Isherwood, 

I  Bro.  Ch.  558 ;  Hutchinson  i:  Tindall,  2  Green.-  Ch.  357 ;  Rumph  u. 
Abercrombie,  12  Ala.  64;  Fillmer  v.  Gott,  7  Bro.  P.  C.  70;  Hunt  v. 
Moore,  2  Barr,  105. 

*  Gibson  v.  Russell,  2  Younge  &  C.  Ch.  104;  Harvey  v.  Mount,  8  Beav. 
439. 

*  Portington  v.  Eglington,  2  Vern.  189 ;  Gartside  v.  Isherwood,  1  Bro. 
Ch.  558;  Bridgman  v.  Green,  2  Ves.  627;  Edmunds  v.  Bird,  1  V.  &  B. 
542;  Fox  v.  Mackreth,  2  Bro.  Ch.  420. 

(a)  The  influence,  in  such  oases,  r.  Webb,  5  App.  D.  C.  38;  Wise  v. 

to  invalidate  a  conveyance,  must  be  Foote,  81  Ky.  10.     A  gift,  as  well 

of  such  a  nature  as  to  deprive  the  as  a  conveyance,  may  be  set  aside  in 

grantor  of  his  free  agency.     Dorsey  equity  for  undue  influence,  or  the 

V.  Wolcott,  173  111.  539  ;  Francis  i\  donor's  executors  may  recover  the 

Wilkinson,  147  111.  370;  Ewing  v.  gift,  though  the  donee  did  not  stand 

Bass,  149  Ind.  1;  Maynard  v.  Tyler,  in  any  confidential  relation  to  the 

168  Mass.  107;  Orrasby  v.  Webb,  donor.     James  r.  Kerr,  40  Ch.  D. 

134  U.  S.  47;  Trost  v.  Dingier,  118  449;  Morley  r.  Loughman.  [1893] 

Penn.  St.  259;  McFadin  v.  Catron,  1  Ch.  736;  Re  Wormley,  137  Penn. 

120  Mo.  252;  Rozell  v.  Vansyckle,  St.  101  ;  Be  Corson,  id.  160  ;  Lewis 

II  Wash.  79;  Parrish  v.  Parrish  v.  Merritt,  113  N.  Y.  386;  Wood- 
(Oregon),   54  Pac.  352;   Olmstead  bury  v.  Woodbury,  141  Mass.  329. 

271 


§  190.]  CONSTRUCTIVE    TRUSTS.  [CHAP.    VI. 

influential  relation  between  the  parties/  courts  will  inter- 
fere and  protect  a  person  of  weak  mind  from  his  contracts. 

§  190.  Mental  weakness  is  not  of  itself  a  sufficient  ground 
for  avoiding  an  agreement,  but  it  must  appear  that  some 
advantage  was  taken  of  it  to  procure  a  favorable  contract ; 
and  if  the  other  party  stood  in  some  fiduciary  relation  to  the 
person  of  weak  mind,  the  burden  is  upon  him  to  show  that 
the  contract  was  in  every  respect  fair,  and  that  no  advantage 
was  obtained  from  the  influential  position  on  the  one  hand, 
or  from  the  feebleness  of  mind  on  the  other.  And  it  is  quite 
immaterial  from  whence  the  mental  weakness  arises.  It 
may  arise  from  a  natural  and  permanent  imbecility  of  mind, 
or  it  may  arise  from  some  temporary  illness  or  debility,  or 
from  the  weakness  and  infirmity  of  extreme  old  age.  Each 
case  must  depend  upon  its  own  circumstances.  If  there  is  a 
fixed  and  permanent  state  of  idiocy  or  insanity,  or  if  the 
party  is  a  declared  lunatic  and  his  affairs  are  in  the  hands 
of  a  committee  or  of  a  guardian,  there  can  be  little  or  no 
doubt.  Questions  generally  arise  where  there  is  not  this 
entire  want  of  capacity,  —  where  no  general  rule  can  be  laid 
down,  but  the  court  is  left  to  judge  of  the  capacity  of  the 
contracting  party,  of  the  circumstances  under  which  the 
contract  was  made,  and  whether  from  all  the  facts  in 
the  case  the  contract  ought  in  equity  and  good  conscience 
to  be  sustained.  Extreme  old  age,  accompanied  by  great 
infirmity;  or  extreme  weakness  and  feebleness  of  mind, 
arising  from  temporary  illness  or  permanent  imbecility, 
stopping  short  of  absolute  incapacity,  —  are  all  pertinent 
facts,  tending  to  show,  if  accompanied  by  other  circum- 
stances, a  fraudulent  contract ;  but  if  upon  all  the  evidence 
the  contract  is  a  fair  one,  if  the  enfeebled  person  is  sur- 

1  Kennedy  v.  Kennedy,  2  Ala.  571 ;  Brice  v.  Brice,  5  Barb.  533;  Buf- 
falow  V.  Buffalow,  2  Dev.  &  Bat.  Eq.  241 ;  Osmond  v.  Fitzroy,  3  P.  Wms. 
130;  Dent  v.  Bennett,  7  Sim.  539;  4  M.  &  C.  269  ;  Cruise  u.  Christopher, 
5  Dana,  181 ;  Whipple  v.  Clure,  2  Root,  216  ;  Brooke  v.  Berry,  2  Gill,  83; 
McCraw  u.  Davis,  2  Ired.  Eq.  618;  Huguenin  v.  Baseley,  14  Ves.  273; 
Griffith  V.  Robins,  3  Madd.  191 ;  Whelan  v.  VVhelan,  3  Cow.  537. 

272 


CHAP.   VI.]  DRUNKENNESS.  [§  191. 

rounded  by  his  friends,  who  understand  the  transaction  and 
explain  it  to  the  party,  it  will  not  he  set  aside.' 

§  191.  Substantially  the  same  rules  apply  to  deeds  and 
instruments  executed  by  a  drunken  person.  Drunkards, 
while  laboring  under  the  frenzy  of  drink,  are  non  compotes 
mentis  by  their  own  act,'''  and  it  is  said  that  they  may  plead 
non  est  factum  to  a  deed  executed  while  so  drunk  that  they 
do  not  know  what  they  are  doing. ^  In  such  case  there  can 
of  course  be  no  intelligent  consent  to  any  contract.  But 
equity  will  not  always  interfere  to  protect  a  drunken  man 
from  the  folly  of  his  own  acts,  and  will  not,  on  account  of 
drunkenness  alone,  set  aside  a  contract  or  convert  the  other 
party  into  a  trustee.*  And  this  is  more  especially  the  rule 
where  the  object  of  the  contract  is  to  carry  out  a  family 
settlement,  or  the  contract  is  fair  and  reasonable  in  its 
terms. ^  But  if  there  is  any  contrivance  or  management  to 
induce  drunkenness  and  to  procure  a  contract,  or  if  there 
was  any  unfair  advantage  taken  of  the  drunkenness  to  pro- 
cure a  contract,  it  would  be  an  actual  fraud,  and  the  court 

»  Griffith  V.  Robins,  3  Madd.  191  ;  Harding  v.  Handy,  11  Wheat.  19-3; 
Dent  I'.  Bennett,  7  Sim.  539;  Att.  Gen.  v.  Pariither,  3  Bro.  Cli.  ii'S  ; 
Hunter  v.  Atkins,  3  M.  &  K.  146  ;  Lewis  v.  Pead,  1  Ves.  Jr.  19;  Pratt  v. 
Barker,  1  Sim.  1 ;  4  Russ.  507 ;  Rippy  v.  Gant,  4  Ired.  Eq.  447 ;  Gratz  i'. 
Cohen,  11  How.  1. 

2  Co.  Litt.  247  a,  447  a;  Beverley's  Case,  4  Co.  124;  Hendrick  v.  Hop- 
kins, Gary,  93. 

8  Cole  V.  Robins,  Bull.  N.  P.  172;  Cook  v.  Clayworth,  18  Ves.  12; 
Reynolds  v.  Waller,  1  Wash.  212  ;  Rutherford  v.  Ruff,  4  Des.  350 ;  Gore 
V.  Gibson,  13  M.  &  W.  623;  Barrett  v.  Buxton,  2  Ark.  167;  Peyton  v. 
Rawlins,  1  Hayw.  77;  Clifton  v.  Davis,  1  Pars.  Eq.  31  ;  French  i-.  French, 
2  Ham.  214;  Wigglesworth  r.  Steers,  1  Hen.  &  Munf .  70;  Shaw  c.  Thack- 
ray,  1  Sm.  &  Gif.  537. 

*  Johnson  v.  Meddlicott,  3  P.  Wms.  131  n.;  Cory  v.  Cory,  1  Yes.  19; 
Nagle  V.  Bayler,  2  Dr.  &  W.  60;  Cooke  v.  Clayworth,  18  Ves.  12;  Max- 
well V.  Pittinger,  2  Green.  Ch.  156;  Morrison  v.  McLeod,  2  Dev.  &  Bat. 
Eq.  221;  Whitesides  v.  Greenlee,  2  Dev.  Eq.  152;  Moore  v.  Read,  2  Ired. 
Eq.  580;  Hotchkiss  i'.  Fortson,  7  Yerg.  67  ;  Belcher  v.  Belcher,  19  Yorg. 
121;  Hutchinson  v.  Brown,  1  Clark,  Ch.  408;  Harbison  v.  Lemon,  3 
Blackf.  51. 

6  Cory  V.  Cory,  1  Ves.  19  ;  Cooke  v.  Clayworth,  IS  Ves.  12. 
VOL.  I. —  18  273 


§  193.]  CONSTRUCTIVE    TRUSTS.  [CHAP.   VI. 

will  not  allow  a  party  to  retain  any  advantage  procured  in 
such  manner,  nor  would  it  lend  its  aid  to  carry  it  into 
eifect^ 

§  192.  So,  equity  will  relieve  in  all  cases  of  contracts 
procured  by  duress,  or  fear,  or  apprehension;  for  if  there 
has  been  any  restraint  upon  a  person's  freedom  to  consent 
or  dissent,  or  any  practice  upon  his  fears,  it  is  a  kind  of 
fraud,  and  no  one  ought  to  enjoy  an  advantage  gained  in 
such  manner. 2  Thus,  if  a  contract  is  made  with  one  in 
prison,  or  under  any  circumstances  of  oppression,  equity 
will  scrutinize  it  with  great  care.^  And  so,  if  advantage  is 
taken  of  the  extreme  distress  or  necessity  of  a  party,  to 
obtain  a  favorable  bargain  from  him,  equity  will  give  relief;* 
but  the  advantage  must  have  been  within  the  contemplation 
of  the  parties  at  the  time. 

§  193.  Of  course,  if  two  or  more  of  these  suspicious  cir- 
cumstances are  found  in  the  same  case ;  as,  if  property  is 

1  Johnson  v.  Meddlicott,  3  P.  Wms.  131 ;  Say  v.  Barwick,  1  V.  &  B. 
195;  Jenness  v.  Howard,  6  Blackf.  240;  Cory  v.  Cory,  1  Ves.  19;  Cooke 
V.  Clayworth,  18  Ves.  12 ;  Crane  v.  Conklin,  Saxt.  346  ;  Calloway  v. 
Wetherspoon,  5  Ired.  Eq.  128;  Hutchinson  v.  TindaU,  2  Green.  Ch.  128; 
Phillips  V.  Moore,  11  Miss.  600;  Cooley  v.  Rankin,  id.  642;  Cragg  v. 
Holme,  18  Ves.  14  n. ;  Shiers  (-•.  Higgons,  1  Madd.  Ch.  Pr.  399 ;  Nagle  v. 
Baylor,  2  Dr.  &  W.  64 ;  Shaw  v.  Thackray,  1  Sm.  &  Gif.  537. 

2  Att.  Gen.  v.  Sothen,  2  Vern.  497 ;  Crowe  v.  Ballard,  1  Ves.  Jr.  220 ; 
Anon.,  3  P.  Wms.  29,  n.  (e)  ;  Gist  v.  Frazier,  2  Lit.  118;  Evans  ■;;. 
Llewellyn,  1  Cox,  340  ;  Hawes  v.  Wyatt,  3  Bro.  Ch.  158. 

3  Att.  Gen.  v.  Sothen,  2  Vern.  497  ;  Roy  v.  Beaufort,  2  Atk.  190; 
Falkner  v.  O'Brien,  2  B.  &  B.  214;  Underhill  v.  Horwood,  10  Ves.  209; 
Xicholls  V.  Nicholls,  1  Atk.  409;  Griffith  i-.  Spratley,  1  Cox,  333;  Hinton 
V.  Hinton,  2  Ves.  634. 

4  Gould  V.  Okeden,  3  Bro.  P.  C.  560;  Harvey  v.  Mount,  8  Beav.  439; 
Hawes  w.  Wyatt,  3  Bro.  Ch.  156;  Bosanquet  r.  Dashwood,  Ca.  t.  Talb. 
37;  Proof  r.  Hines,  id.  Ill;  Pickett  v.  Loggon,  14  Ves.  215;  Farmers. 
Farmer,  1  H.  L.  Cas.  724;  Fitzgerald  v.  Rainsford,  1  B.  &  B.  37;  Under- 
hill V.  Horwood,  10  Ves.  209;  Iluguenin  >•.  Baseley,  14  Ves.  273;  Carpen- 
ter V.  Elliott,  2  Ves.  494 ;  Basy  v.  Magrath,  2  Sch.  &  Lef.  31 ;  Rarasbot- 
tom  V.  Parker,  6  Madd.  6;  Wood  v.  Abrey,  3  Madd.  417;  Crowe  r. 
Ballard,  1  Ves.  Jr.  215;  Nottige  v.  Prince,  6  Jur.  (n.  s.)  1066;  Davis  v. 

274 


CHAP.   VI.]  DURESS.  [§  194. 

obtained  from  a  person  of  weak  mind,  or  under  duress,  or  in 
great  distress,  for  a  grossly  inadequate  consideration,  or 
upon  any  unusual,  extraordinary,  or  oppressive  terms,  the 
evidence  would  Vjc  much  stronger  of  some  fraudulent  prac- 
tice, and  would  call  upon  the  suspected  party  for  a  very 
complete  vindication  of  the  transaction,  or  he  would  be  con- 
verted into  a  trustee.' 

§  194.  Lord  Hardwicke's  "third  species  of  fraud  may  be 
presumed  from  the  circumstances  and  condition  of  the 
parties  contracting;  and  this  goes  further  than  the  rule  of 
law,  which  is,  that  fraud  must  be  proved,  not  presumed.  "^ 
At  law,  fraud  must  be  proved ;  but  in  equity  there  are  cer- 
tain rules  prohibiting  parties  bearing  certain  relations  to 
each  other  from  contracting  between  themselves ;  and  if 
parties  bearing  such  relations  enter  into  contracts  with  each 
other,  courts  of  equity  presume  them  to  be  fraudulent,  and 
convert  the  fraudulent  party  into  a  trustee.  And  herein 
courts  of  equity  go  further  than  courts  of  law,  and  presume 
fraud  in  cases  where  a  court  of  law  would  require  it  to  be 
proved;  that  is,  if  parties  within  the  prohibited  relations  or 
conditions  contract  between  themselves,  courts  of  equity  will 
avoid  the  contract  altogether,  without  proof,  or  they  will 
throw  upon  the  party  standing  in  this  position  of  trust, 
confidence,  and  influence,  the  burden  of  proving  the  entire 
fairness  of  the  transaction.  Thus,  if  a  parent  buys  property 
of  his  child,  a  guardian  of  his  ward,  a  trustee  of  his  cestui 
que  trust,  an  attorney  of  his  client,  or  an  agent  of  his  prin- 
cipal, equity  will  either  avoid  the  contract  altogether,  with- 
out proof,  or  it  will  throw  the  burden  of  proving  the  fairness 
of  the  transaction  upon  the  purchaser;  and,  if  the  proof 
fails,  the  contract  will  be  avoided,  or  the  purchaser  will  be 
construed  to  be  a  trustee  at  the  election  of  the  other  party. 
The    ground    of   this  rule  is,  that   the    danger  of   allowing 

^IcNally,  5  Sneed,  583;  Graham  r.  Little,  3  Jones,  Eq.  152;  Stewart  w. 
Hubbard,  id.  186. 

J  Griffin  v.  De  Veulle,  Wood.  Lect.  App.  16. 

2  Chesterfield  c.  Janssen,  2  Ves.  155. 

275 


§  195.]  CONSTRUCTIVE   TRUSTS.  [CHAP.   TI. 

persons  holding  such  relations  of  trust  and  influence  with 
others  to  deal  with  them  is  so  great  that  the  presumption 
ought  to  be  against  the  transaction,  and  the  person  holding 
the  trust  or  influence  ought  to  be  required  to  vindicate  it 
from  all  fraud,  or  to  continue  to  hold  the  property  in  trust 
for  the  benefit  of  the  ward,  cestui  que  trust,  or  other  person 
holding  a  similar  relation.^ 

§  195.  These  principles  are  applied  in  their  full  vigor  to 
all  contracts  and  sales  between  trustee  and  cestui  que  trust.^ 
The  trustee  is  in  such  a  position  of  confidence  and  influence 
over  the  cestui  que  trust,  that  the  contract  or  bargain  will 
either  be  void  or  he  will  be  a  constructive  trustee,  at  the 
election  of  the  cestui  que  trust,  unless  the  trustee  can  show 
that  the  contract  was  entirely  fair  and  advantageous  to  the 
cestui  que  trust.^     The  presumption  is  against  the  transaction. 

1  Hoghton  V.  Hoghton,  15   Beav.  278;    Cooke   v.  Lamotte,  id.  234 
Ahearne  v.  Hogan,  1  Dr.  310  ;  Espey  v.  Lake,  10  Hare,  260;  Prideaux  i'. 
Lonsdale,  1  De  G.,  J.  &  S.  433;  Bayley  v.  Williams,  11  Jur.  (n.  s.)  236 
Clark  V.  Malpas,  31  Beav.  80 ;  Grosvenor  v.  Sherratt,  28  Beav.  659  ;  Bean 
land    V.   Bradley,  2  Sm.   &  Gif.   339;    Taylor  v.  Taylor,  8  How.   183 
Greenfield's  Est.,  14  Penn.  St.  504  ;  Graham  v.  Pancoast,  30  id.  89  ;  Nace 
V.  Boyer,  id.  99  ;  Wester's  App.,  54  id.  60 ;  Sears  v.  Shafer,  2  Seld.  268 ; 
Buffalow  V.  Buffalow,  2  Dev.  &  Bat.  241 ;  Prewett  v.  Coopwood,  30  Miss. 
369  ;  Graham  v.  Little,  3  Jones,  Eq.  152  ;  Powell  v.  Cobb,  id.  456;   Gass 
V.  Mason.  4  Sneed,  497 ;  Lovatt  v.  Knipe,  12  Ir.  Eq.  124 ;  Ames  v.  Port 
Huron,  11  Mich.  139;  European  R.  R.  Co.  v.  Poor,  59  Maine,  277. 

2  Hatch  V.  Hatch,  9  Ves.  296  ;  Hylton  v.  Hylton,  2  Ves.  549 ;  Hunter 
V.  Atkins,  3  M.  &  K.  135  ;  Bulkley  v.  Wilford,  2  CI.  &  Fin.  102;  Farnam 
V.  Brooks,  9  Pick.  212  ;  Boynton  v.  Brastow,  53  Me.  362  ;  Staats  v.  Ber- 
gen, 17  N.  J.  Eq.  554;  Coffee  v.  Ruffin,  4  Cold.  487;  Faucett  v.  Faucett, 
4  Bush.  521  ;  Korns  v.  Shaffer,  27  Md.  83;  Baltimore  v.  Caldwell,  25 
Md.  423 ;  Smith  v.  Townshend,  27  Md.  368  ;  Colborn  v.  Morton, 
3  Keyes,  266;  Pairo  v.  Vickery,  37  Md.  467  ;  Wright  v.  Campbell,  27 
Ark.  637. 

8  Crosskill  v.  Bower,  32  Beav.  86  ;  Pooley  v.  Quilter,  2  De  G.  &  J.  327; 
Spring  V.  Pride,  10  Jur.  (n.  s.)  046;  Ex  parte  Ridgeway,  1  Jur.  (x.  s.) 
97  ;  Heme  v.  ]Meeres,  1  Vern.  465  ;  Ayliffe  v.  ^lurray,  2  Atk.  59  ;  Fox  v. 
Mackreth,  2  Bro.  Ch.  400 ;  Coles  v.  Trecothick,  9  Ves.  246  ;  Ex  parte 
Lacey,  6  Ves.  625  ;  Morse  v.  Royal,  2  Ves.  376 ;  Whichcote  v.  Lawrence,  3 
Ves.  740  ;  Gibson  v.  Jeyes,  6  Ves.  277;  Hunter  v.  Atkins,  3  M.  &  K.  135; 
276 


CHAP.   VI.]      CONTRACTS   WITH   CESTUI   QUE   TRUST.  [§  195. 

li"  a  cestui  confess  judgment  or  make  a  deed  to  the  trustee, 
the  burden  is  on  the  latter  to  repel  the  intendment  of  law 
that  there  was  undue  iulluence. '  If  a  trustee  conveys  trust 
property  to  himsulf,  any  one  or  more  of  the  cestuis  may 
avoid  the  decd.^  In  the  case  just  cited  the  trustees  conveyed 
the  trust  property  to  themselves  through  a  third  person, 
without  actual  intent  to  defraud,  but  for  a  consideration 
really  inadequate.  Considerable  time  had  elapsed,  there 
were  future  interests  in  the  property  represented  only  by  the 
trustee,  and  persons  other  than  the  trustees  had  acquired 
rights  in  the  land  for  value;  wherefore  on  the  whole  the 
court  allowed  the  property  to  be  retained  on  payment  of  the 
difference  between  the  actual  consideration  and  its  fair  value 
with  interest  at  annual  rests.  The  general  rule  is,  that  the 
trustee  shall  not  take  beneficially  l)y  gift  or  purchase  from 
the  cestui  que  trust,^  even  although  the  supposed  trustee  and 
purchaser  is  a  mere  intermeddler  and  not  a  regularly  recog- 
nized trustee;*  the  question  is  not  whether  or  not  there  is 

Scott  V.  Davis,  4  M.  &  Cr.  87  ;  Kerr  v.  Dungannon,  1  Dr.  &  W.  509;  Van 
Epps  V.  Van  Epps,  9  Paige,  237 ;  Ilawley  v.  Cramer,  4  Cow.  717 ;  Camp- 
bell V.  Walker,  5  Ves.  G78 ;  ISIichoud  v.  Girod,  4  How.  503  ;  De  Caters  v. 
Chaiimont,  3  Paige,  178;  Child  v.  Bruce,  4  Paige,  309  ;  Campbell  v.  John- 
ston, 1  Saiidf.  Ch.  148 ;  Cram  i'.  Mitchell,  id.  '251 ;  Davis  v.  Simpson,  5 
Har.  &  J.  147  ;  Boyd  v.  Hawkins,  2  Ired.  Ch.  304  ;  Matthews  v.  Dragand, 
3  Des.  25;  Thorp  v.  McCullum,  1  Gilm.  614;  Davoue  v.  Fanning,  2 
Johns.  Ch.  252;  De  Bevoise  v.  Sandford,  1  Hoff.  192  ;  Stuart  v.  Kissam, 
2  Barb.  493  ;  Richardson  v.  Jones,  3  G.  &  J.  1G3;  Clark  r.  Lee,  14  Iowa, 
425;  Zimmerman  t:  Harmon,  4  Rich.  Eq.  165;  Johnson  c.  Blackman,  11 
Conn.  343;  Moody  r.  Vandyke,  4  Binn.  81;  Armstrong  r.  Campbell,  3 
Yerg.  201  ;  Bruch  r.  Lantz,  2  Rawle,  392  ;  Ilerr's  Est.,  1  Grant's  Cas. 
172;  Painter  v.  Henderson,  7  Barr,  48;  Brackenridge  v.  Holland,  2 
Blackf  377 ;  Scroggins  r.  McDougald,  8  Ala.  382  ;  Thompson  r.  Wheat- 
ley.  5  S.  &  M.  499;  Shelton  v.  Homer,  5  Met.  462;  Freeman  r.  Ilarwood, 
49  Maine,  195;  Hickman  u.  Stewart,  69  Tex.  255;  Patterson's  Appl.,  118 
Penn.  St.  571. 

1  Yonge  r.  Hooper,  73  Ala.  119. 

2  Morse  r.  Hill,  136  Mass.  60. 

«  Coles  r.  Trecothick,  9  Ves.  234  ;  Renew  v.  Butler,  30  Ga.  954  ;  Cad- 
wallader's  App.,  64  Penn.  St.  293;  Wright  c.  Smith,  23  N.  J.  Eq.  106; 
Smith  r.  Drake,  id.  302. 
.^    *  Wright  V.  Smith,  23  X.  J.  Eq,  106. 

277 


§  195.]  CONSTRUCTIVE    TKUSTS.  [CHAP.    VI. 

fraud  in  fact,  the  law  stamps  the  purchase  by  the  trustee  as 
fraudulent /)er  se/  to  remove  all  temptation  to  collusion  and 
prevent  the  necessity  of  intricate  inquiries  in  which  evil 
would  often  escape  detection,  and  the  cost  of  which  would 
be  gi'cat.  The  law  looks  only  to  the  facts  of  the  relation 
and  the  purchase.  The  trustee  must  not  deal  with  the 
property  for  his  own  benefit. ^  So  where  the  trustee  in  sell- 
ing the  property  to  a  third  person  stipulates  that  the  vendee 
is  to  sell  it  afterwards  to  the  trustee,  and  the  agreement  is 
carried  out,  the  trustee  holds  still  as  trustee,  and  not  by  an 
independent  title  as  other  purchasers  from  such  vendee 
might  have.  3  No  trustee  can  directly  or  indirectly  become  a 
purchaser  in  his  own  behalf  of  the  trust  property,  and  hold 
it  against  the  cestui.*  (a)  A  purchase  by  a  trustee  inures  to 
the  benefit  of  the  cestui.^  It  is  not,  however,  void  but  only 
voidable   at   the   election  of   the  cestui  que   trust.^  (b)     But 

1  McGaughey  v.  Brown,  46  Ai-k.  25. 

2  King  v.  Remington,  36  Minn.  25;  Baldwin  v.  Allison,  4  ^linn.  11; 
Jewett  i:  Miller,  10  N.  Y.  402. 

3  De  Cells  v.  Porter,  59  Cal.  464. 

4  Marshall  v.  Carson,  38  N.  J.  Eq.  250;  Creveling  v.  Fritts,  34  id.  134 ; 
People  V.  O.  B.  of  S.  B.  B.  Co.,  92  N.  Y.  98. 

5  People  V.  Merchants'  B'k,  35  Hun,  97. 

6  Dodge  V.  Stevens,  94  N.  Y.  209;  Gibson  v.  Barbour,  100  N.  C.  192. 

(a)  The  only  method  by  which  does  not  render  the  purchase  void 
a  trustee  can  protect  his  purchase  ab  initio,  but  voidable  only  at  the 
is,  when  he  sees  the  absohite  neces-  instance  of  the  cealui  qui'  trust:  and 
sity  of  a  sale  of  the  estate,  and  he  even  while  the  title  is  in  the  trustee, 
is  ready  to  give  more  than  any  one  it  may  be  confirmed  by  acquiescence 
else,  to  apply  by  motion,  to  the  and  lapse  of  time,  as  well  as  by  the 
court  of  equity  in  which  the  bill  for  express  act  of  the  cestui  que  trust. 
a  sale  is  filed,  to  permit  him  to  be  Kahn  v.  Chapin,  152  N.  Y.  305, 
the  purchaser.  Boswell /'  Coaks,  23  309;  Harrington  i\  Erie  S.  Bank, 
Ch.  D.  302,  310;  Markle's  Estate,  101  N.  Y.  2-57;  Hammond  v.  Hop- 
182  Penn.  St.  378.  kins.  143  U.  S.  224;  Hoytr.  Latham, 

(b)  This  applies  to  a  purchase  id.  553;  Morse  v.  Hill,  136  Mass. 
at  public  auction.  2  Story  Eq.  Jur.  60  ;  Barber  v.  Bowen,  47  Minn.  118; 
§.322;  Broder  v.  Conklin' 121  Cal.  Hopper  v.  Hopper,  79  Md.  400; 
282,  286;  Hamilton  v.  Dooly,  15  Harrison  v.  Manson,  95  Va.  .593; 
Utah,  280.  The  rule  that  a  trustee  Quirk  v.  Liebert,  12  App.  D.  C. 
cannot  purchase  or  deal  with  the  394  ;  Cole  v.  Stokes,  113  N.  C. 
trust   property   in   his   own  behalf  270;  Darlings.  Potts,  llSlNIo.  506; 

278  Thompson  v.  Hartline,  105  Ala.  2G3. 


CHAP.  VI.]   CONTRACTS  WITH  CESTUI  QUE  TRUST.      [§  195. 

there  arc  exceptions  to  the  rule,  and  a  trustee  may  buy  from 
the  cestui  que  trust,  provided  there  is  a  distinct  and  clear 
contract,  ascertained  alter  a  jealous  and  scrupulous  exami- 
nation of  all  the  circumstances;  that  the  cestui  que  trust 
intended  the  trustee  to  buy,  and  there  is  fair  consideration 
and  no  fraud,  no  concealment,  no  advantage  taken  by  the 
trustee  of  information  acipiired  by  him  m  the  character  of 
trustee.'  The  trustee  must  clear  the  transaction  of  every 
shadow  of  susiiicion,^  and  if  he  is  an  attorney  he  must  show 
that  he  gave  his  client,  who  sold  to  him,  full  information 
and  disinterested  advice.^  Lord  Eldon  said  he  admitted  that 
the  exception  was  a  difficult  case  to  make  out.^  xVnd  it  may 
be  said  generally  that  it  is  difficult  to  find  a  case  where  such 
a  transaction  has  been  sustained.^  Any  withholding  of 
information,^  or  ignorance  of  the  facts  or  of  his  rights  on 
the  part  of  the    cestui,''   or   any  inadequacy  of  price, ^  will 

1  Wright  V.  Smith,  23  X.  J.  Eq.  lOG;  Bryan  r.  Duncan,  11  Ga.  67; 
Dobson  c.  Kacey,  3  Sandf.  61 ;  Paillon  v.  ^lartin,  1  id.  560  ;  Bracken- 
ridge  >•.  Holland,  2  Blackf.  377 ;  Stuart  c.  Kissam,  2  Barb.  494  ;  Branian 
V.  Oliver,  2  Stewart,  47;  Julian  i\  Reynolds,  8  Ala.  680  ;  Stallings  v. 
Foreman,  2  Hill,  Ch.  401;  Pratt  c.  Thornton,  28  Maine,  355;  ^McCartney 
V.  Calhoun,  17  Ala.  301;  Marshall  v.  Stevens,  8  Humph.  159;  Beeson  v. 
Beesou.O  Barr,  279;  McKinley  v.  Irvine,  14  Ala.  681;  Farnam  v.  Brooks, 
9  Pick.  212  ;  Lyon  v.  Lyon,  8  Ired.  Eq.  201 ;  Harrington  v.  Brown,  5  Pick. 
519;  Jennison  v.  Ilapgood,  7  Pick.  1  ;  Dunlap  v.  Mitchell,  10  Ohio,  117; 
Scott  V.  Freeland,  7  Sm.  &  M.  410;  Pennock's  App.,  4  Penn.  St.  446; 
Brucli  r.  Lantz,  2  Rawle,  392  ;  Field  v.  Arrowsmith,  3  Humph.  442  ; 
Monro  v.  Allaire,  2  Gaines'  Gas.  163 ;  Salmon  v.  Cutts,  4  De  G.  &  Sm. 
131 ;  Harrison  v.  Guest,  6  De  G.,M.  &  G.  431 ;  Herbert  v.  Smith,  6  Lans. 
493  ;  Birdwell  v.  Cain,  1  Cold.  301 ;  Rice  /•.  Cleghorn,  21  Ind.  SO;  John- 
son V.  Bennett,  39  Barb.  37;  Buel  c.  Buckingham,  16  Iowa,  284  ;  Brown 
i\  Cowell,  116  Mass.  465;  pout,  §428;  Graves  v.  Waterman,  63  X.  Y. 
657;  Golson  r.  Dunlap,  73  Cal.  157  ;  Miggett's  App.,  109  Penn.  St.  520. 

2  Lathrop  v.  Pollard,  6  Col.  424;  Jones  v.  Lloyd,  117  111.  597  ;  Porter 
t;.  AVoodruff,  36  N.  J.  Eq.  174  ;  Everett  v.  Henry,  67  Tex.  402. 

8  Dunn  V.  Dunn,  42  X.  J.  Eq.  431. 
*  Coles  r.  Trecothick,  9  Ves.  246. 
6  2  Sugd.  V.  &  P.  (8  Am.  ed.)  687. 

«  Fox  V.  Mackreth,  2  Bro.  Ch.  400  ;  Scott  i-.  Davis,  4  M.  &  Cr.  87; 
Heme  v.  Meeres,  1  Vern.  465  ;  Cook  v.  Sherman,  4  McCrary,  20. 
'  Leach  v.  Leach,  65  Wis.  284. 

8  Pugh  V.  Bell,  1  J.  J.  Marsh.  398;  Morse  v.  Royal,  12  Ves.  373. 

279 


§  195.]  CONSTEUCTIVE   TRUSTS.  [CHAP.   VI. 

make  such  purchaser  a  constructive  trustee.  The  cestui  que 
trust  must  know  that  he  is  dealing  with  the  trustee.  There- 
fore, if  the  trustee  purchases  through  an  agent  or  third 
person,  and  the  cestui  que  trust  does  not  know  the  trustee  in 
the  transaction,  the  contract  will  be  void,  or  a  trust  in  the 
agent.*  The  rule  is  that  the  trustee  shall  not  purchase 
directly  or  indirectly ;  therefore  if  the  trustee  conveys  to  a 
stranger,  and  the  stranger  conveys  back  to  the  trustee,  the 
transaction  is  equally  void.^  So,  if  the  trustee  purchases  at 
auction  of  the  cestui  que  trust,  the  presumption  is  strongly 
against  the  transaction,^  and  the  purchase  is  generally  void.* 
And  one  of  several  trustees  is  under  the  same  disabilities:^ 
they  cannot  convey  to  each  other. ^  And  so,  if  the  purchase 
is  made  by  an  agent  or  attorney  of  the  trustee.'''  Nor  can 
the  trustee's  wife  purchase.^  Nor  can  the  trustee  purchase 
as  agent  for  another.^  The  cestui  que  trust  is  not  estopped 
to  avoid  such  sales,  although  he  has  taken  a  legacy  under 
the  will  of  the  trustee,  if  such  legacy  is  not  a  charge  upon 
the  trust  estate  and  is  not  otherwise  connected  with  the  trust 
fund.**  If  such  sales  are  avoided,  upon  a  reconveyance 
the  trustee  is  entitled  to  receive  back  all  the  purchase- 
money  and  all  other  claims  which  he  may  have  against  the 

1  Randall  v.  Errington,  10  Ves.  423. 

'^  Dobson  V.  Racey,  3  Sandf.  61. 

8  Att.  Gen.  v.  Dudley,  Coop.  146  ;  Whelpdale  v.  Cookson,  1  Ves.  9 ; 
Lister  ik  Lister,  6  Ves.  631  ;  Sanderson  i;.  Walker,  13  Ves.  601  ;  Downes 
V.  Grazebrook,  3  Mer.  200;  Campbell  v.  Walker,  3  Ves.  378;  Wbitcomb 
V.  Miiiichiii,  5  Madd.  91. 

4  Roberts  v.  Roberts,  65  N.  C.  27. 

^  Whichcote  v.  Lawrence,  3  Ves.  740. 

*  Boynton  v.  Brastow,  53  ISIaine,  362. 

'  Campbell  v.  Walker,  5  Ves.  378  ;  Cox  v.  John,  32  Ohio  St.  532. 

8  Dundas's  App.,  64  Penn.  St.  325  ;  Leitch  w.  Wells,  48  Barb.  6-37.  But 
it  has  been  held  that  the  trustee's  wife  mi^^ht  purchase  -where  the  trust 
property  was  sold  under  a  judicial  decree  of  sale,  in  the  absence  of  fraud 
and  collusion,  if  the  sale  is  affirmed  by  a  decree  of  the  court  upon  a  re- 
port of  the  proceedings.      Armstrong's  App.,  69  Penn.  St.  409. 

5  North  Baltimore,  &c.  Ass'u  v.  Caldwell,  25  Md.  420  ;  James  v.  James, 
55  Ala.  525, 

10  Smith  V.  Townshend,  27  Md.  368. 
280 


CHAP.  VI.]    CONTRACTS  WITH  CESTUI  QUE  TRUST.     [§  195. 

estate.'  (a)  And  he  may  purchase  of  the  cestui  que  trust  property 
nut  embraced  in  the  trust  fund,  care  being  taken  that  the  influ- 
ence of  the  rehition  dues  nut  affect  the  transacti(jn/''  Scjuie- 
timcs  the  trustee  is  allowed,  by  decrees  of  sale,  to  be  a 
bidder  fur  the  jiroperty  at  his  own  auctiun;  in  such  case  the 
trustee  must  show  the  utmust  diligence  and  guud  faith  for 
the  interest  of  the  cestui  que  trust. ^  Where  a  trustee  has  an 
interest  to  protect  by  bidding  at  a  sale  of  trust  property,  he 
may  ask  the  court  for  jjcrnjission  to  bid,  and  when  this  is 
granted  after  hearing  all  parties  interested,  he  can  bid,  and 
obtain  a  perfect  title.*  And  a  trustee  may  buy  at  a  sale 
procured  by  some  one  else,  not  controlled  by  himself,  in  good 
faith  to  protect  the  interests  of  himself  and  others.^  (b)  A 
trustee  who  has  bona  fide  sold  the  property  to  a  third  person 
may  afterwards  buy  it  for  himself,^  and  the  prohibition  does 
not  ap{)ly  where  the  sale  of  the  property  is  by  a  judgment 
creditor  of  the  cestui  through  the  sheriff,  and  not  the  trustee's 
sale.''  Acquiescence,  lapse  of  time,  or  express  act  of  the 
cestui  may  make  the  trustee's  title  good.^  Matters  of  indebt- 
edness growing  out  of  relations  of  trust  and  confidence  are 
subject  to  adjustment  and  settlement  the  same  as  claims 
arising  in  other  transactions.^ 

1  Elliott  V.  Pool,  6  Jones,  Eq.  42.  2  j^idredge  v.  Smith,  34  Yt.  4S4. 

8  Cadwallader's  App.,  64  Penu.  St.  203;  Colgate  v.  Colgate,  23  N.  J. 
Eq.  372. 

*  Scholle  V.  Scholle,  101  N.  Y.  107. 

6  Liisk's  App.,  lUS  Penn.  St.  152;  Allen  v.  Gillette,  127  U.  S.  589. 

8  Welch  V.  McGrath,  59  Iowa,  519. 

'  Clark  V.  Holland,  72  Iowa,  36. 

8  Harrington  v.  Erie  County  Savings  Bank,  101  X.  Y.  257. 

'  Clute  v.  Frasier,  58  Iowa,  273. 

(a)  So  the  assignee  of  a  contract  tliough  he  did  not  ask  or  receive  the 

to  purchase  real  estate,  who  receives  latter's  approval  thereof.       Stewart 

it  in  trust  for  the  assignor,  has  an  r.  Fellows,  128  111.  480. 
equitable  lien  on  the  land,  when  he  (h)  An  executor  is  not  precluded 

receives   the   title,  for  so   much  of  from  purchasing  at  the  sale  of  au 

moneys  paid  as  he  necessarily  ad-  heir's  interest  in  real  estate,  that  not 

vanced  to  prevent  a  forfeiture  under  being  within  his  control  as  trustee, 

the  contract  to  purchase,  and  pre-  Ilaigh  v.  Pearson,  11  Utah,  51. 
serve  the   interest  of   his  assignor, 

281 


§  196.]  CONSTKUCTIVE    TRUSTS.  [CHAP.    YI. 

§  196.  If  among  the  assets  of  the  trust  estate  there  are 
leases,  the  trustee  cannot  renew  them  in  his  own  name;  and 
if  he  renews  them  in  his  own  name,  he  must  hold  them  by  a 
constructive  trust  for  the  same  persons  beneficially  interested 
in  the  old  leases.^  Even  if  the  lessor  refuse  to  renew  the 
lease  for  the  benefit  of  the  cestui  que  trust,  and  the  trustee 
takes  it  in  his  own  name,  he  is  still  a  constructive  trustee, 
and  he  must  account  for  all  the  income  and  profits,  (a)  This 
is  on  the  ground  that  a  trustee  should  be  under  no  tempta- 
tions to  make  any  contracts  in  relation  to  the  trust  property, 
even  collaterally,  on  his  own  private  account. ^  The  same 
rule  extends  to  all  persons  who  have  only  a  partial  interest 
in  property :  they  shall  not  take  advantage  of  their  situation 
to  renew  leases  in  their  own  names;  as,  tenants  for  life,^ 
mortgagees,*  devisees  subject  to    debts,  legacies,   or  annui- 

1  Keech  v.  Sandford,  commonly  called  the  Rumford  Market  Case,  Sel. 
Ch.  Cas.  61  ;  1  Lead.  Cas.  Eq.  36,  Eng.  &  Am.  notes  ;  GrifRn  v.  GilfBn, 
1  Sch.  &  Lef.  354;  Pickering  u.  Vowles,  1  Bro.  Ch.  198;  Pierson  y.  Shore, 
1  Atk.480;  Xesbitt  v.  Tredennick,  1  B.  &  B.  46;  Turner  v.  Hill,  11  Sim. 
14  ;  Whalley  v.  Whalley,  1  Vern.  484  ;  Holt  v.  Holt,  1  Ch.  Cas.  190  ; 
Anon.,  2  id.  207;  Abney  v.  Miller,  2  Atk.  597;  Killick  v.  Flexney,  4  Bro. 
Ch.  161;  Luckin  v.  Rushworth,  Finch,  392;  Mulvaney  ?;.  Dillon,  1  B.  & 
B.  409  ;  Fosbrook  v.  Balguy,  1  M.  &  K.  226  ;  Owen  v.  Williams,  Amb. 
794;  Fitzgibbon  v.  Scanlan,  1  Dow,  261;  Bradford  v.  Brownjohn,  L.  R. 
3  Ch.  714. 

^  Keech  v.  Sandford,  Sel. Ch.  Cas.  61 ;  Griffin  v.  Griffin,  1  Sch.  &  Lef. 
353. 

3  Eyre  v.  Dolphin,  2  B.  &  B.  290  ;  Rawe  v.  Chichester,  Amb.  719  ; 
Coffin  V.  Fernyhough,  2  Bro.  Ch.  291;  Taster  v.  Marriott,  Amb.  668; 
James  v.  Dean,  11  Ves.  383  ;  15  Ves.  236  ;  Kemptou  v.  Packman,  7  Ves, 
176  ;  Giddings  v.  Giddings,  3  Russ.  241 ;  Crop  v.  Xorton,  9  Mod.  233 ; 
Buckley  v.  Lanauze,  Llo.  &  Goo.  t.  Plunk.  327 ;  Tanner  v.  Elworthy,  4 
Beav.  487;  Waters  v.  Bailey,  2  Y.  &  C.  Ch.  218;  Yem  v.  Edwards,  3  K. 
&  J.  564  ;  1  De  G.  &  J.  598 ;  Brookman  v.  Hales,  2  Y.  &  B.  45. 

^  Rushworth's  Case,  Freem.  13 ;  Nesbitt  v.  Tredennick,  1  B.  &  B.  46. 

(a)  The   trust   which   the  court  in  which  the  renewal  has  been  ob- 

fastens  upon  the  new  lease  is  not  tained  by  virtue    of    the    original 

confined  to  the  renewal  by  a  person  lease.     In  re  Lulham,  53  L.  J.  Ch. 

who  was  at  the  time  in  a  fiduciary  N.  s.  928,  931. 
position,  but  extends  to  other  cases 

232 


CHAP.   VI.]  RENEWAL   OF   LEASES   BY   TRUSTEES.  [§  197. 

ties,*  joint  tenants,^  or  ijartut'rs;^  and  where  there  was  a 
mere  teiuiucy  at  will,  it  was  held  that  the  tenant  eould  not 
renew  in  his  own  name,  and  dejjrive  the  remainder-man  of 
what  might  come  to  him.*  And  il,  instead  oi  renewing,  the 
trustee  or  other  person  sell  the  right  to  renew  for  money,  he 
must  account  for  the  price  to  the  persons  benelicially  inter- 
ested.^ Nor  can  an  agent  acting  for  the  trustee  renew  in  his 
own  namc.^  The  same  rule  applies  when  the  trustee  of  an 
equity  of  redemption  becomes  the  purchaser  in  a  foreclosure 
suit,^  and  to  the  purchase  by  a  trustee  of  any  property,  not  a 
part  of  the  trust  fund,  which  has  the  necessary  effect  to 
diminish  the  trust  fund.*^ 

§  197.  It  is  thus  seen  that  the  rule  against  purchasing  by 
trustees,  of  the  cestui  que  trust,  amounts  almost  to  prohibi- 
tion; for  if  a  trustee  purchases  the  property,  and  sells  it  at  a 
profit,  he  must  account  for  it  as  a  trustee ;  not  because  there 
was  any  fraud  in  the  transaction,  but  because  it  is  against 
the  policy  of  the  law  to  allow  such  transactions. ^     Nor  is  it 

1  Jackson  r.  Welch,  Llo.  &  Goo.  t.  Plunk.  34G ;  Winslow  v.  Tighe,  2 
B.  &  B.  195  ;  Stubbs  v.  Roth,  id.  548  ;  Webb  v.  Lugar,  2  Y.  &  C.  247 ; 
Jones  r.  Kearney,  1  Conn.  &  Laws,  34. 

2  Palmer  *-.  Young,  1  Vein.  276. 

'  Felheistonhaugh  v.  Fenwick,  17  Ves.  298 ;  Ex  parte  Grace,  1  Bos. 
&  P.  376;  Clegg  c.  Fish  wick,  1  Macn.  &  G.  294,  299,  Am.  ed.  Perkins, 
note  1  ;  Clegg  v.  Edmondson,  8  De  G.,  M.  &  G.  787. 

4  James  v.  Dean,  11  A'es.  383;  15  Ves.  236  ;  Re  Tottenham,  16  lied. 
Ch.  118. 

6  Owen  r.  AVilliams,  Amb.  734. 

^  Edwards  i'.  Lewis,  3  Atk.  538. 

■f  Huhbell  V.  ^Medbury,  53  N.  Y.  98;  Terrett  v.  Crombie,  6  Lans.  83. 

8  Fulton  i:  Whitney,  67  N.  Y.  548. 

9  Ilawley  v.  Cramer,  4  Cow.  117;  Prevost  v.  Gratz,  1  Pet.  66,  367  ;  6 
Wheat.  481  ;  Edwards  v.  :Meyrick,  2  Hare,  60 ;  Hamilton  r.  Wright,  9 
CI.  &  Fin.  Ill;  Fox  v.  Mackreth,  2  Bro.  Ch.  400;  1  Cox,  310  ;  John  v. 
Bennett,  39  Barb.  237;  Kent  r.  Chalfant,  7  ISIinn.  487  ;  Tiffany  v.  Clark, 
1  X.  Y.  Sup.  Ct.  Add.  9  ;  Handlin  c.  Davis,  81  Ky.  34.  An  administrator 
who  has  bid  in,  in  his  own  name,  at  a  foreclosure  of  a  mortgage  belonging 
to  his  intestate,  under  the  act  authorizing  him  to  do  so,  holds  in  trust,  and 
cannot  sell  without  the  authority  of  the  court.  RaflVrty  r.  Mallory,  3  Biss. 
362.     But  see  Frouberger  v.  Lewis,  79  >■'.  C.  426,  where  an  exception  to 

283 


§  197.]  CONSTRUCTIVE   TRUSTS.  [CHAP.   VI. 

material  that  there  should  be  an  advantage,  or  profit,  arising 
out  of  a  purchase  by  the  trustee  from  the  cestui  que  trust.  It 
is  not  necessary  to  prove  such  advantage  or  profit:  it  is 
enough  to  show  the  relation  and  the  purchase.  The  trustee 
can  make  no  profit  from  his  management  of  the  estate,  and 
he  is  bound  not  to  put  himself  in  any  position  where  his 
private  interests  may  confiict  with  the  interests  of  the 
cestui  que  trusts  If  a  trustee  purchases  the  trust  property, 
the  cestui  que  trust  may  have  the  purchase  set  aside  and  the 
property  resold.^  (a)  The  general  rule  is  that  only  lapse  of 
time  or  ratification  can  make  the  purchase  good,  and  the 
burden  of  proof  is  on  the  trustee  to  show  laches  or  acquies- 

the  rule  is  said  to  be  in  case  the  trustee  has  a  personal  interest  in  the 
property,  when  he  may  bid  at  the  sale  to  protect  that  interest ;  but  then 
he  ought  to  obtain  the  sanction  of  the  court. 

1  Ex  parte  Lacey,  6  Yes.  625;  Chesterfield  v.  Janssen,  2  Ves.  138  ; 
Campbell  v.  Walker,  5  Ves.  678;  13  Ves.  138  ;  Cane  v.  Allen,  2  Dow,  289 ; 
Slade  V.  Van  Vechten,  11  Paige,  21 ;  Davoue  v.  Fanning,  2  Johns.  Ch.  252; 
Michoud  V.  Girod,  4  How.  503;  Dobson  v.  Racey,  3  Sandf.  61 ;  Morse  v. 
Royal,  12  Ves.  355  ;  Ex  parte  James,  8  Ves.  337;  Ex  parte  Bennett,  10 
Ves.  381 ;  Saagar  v.  Wilson,  4  S.  &  W.  102.  Such  transactions  are  fraudu- 
lent/ler  se.  Nelson  v.  Hoyvner,  66  111.  487.  The  attorney  of  the  trustee 
comes  equally  within  the  prohibition,  and  it  makes  no  difference  in  the 
application  of  the  rule  that  a  third  person  has  conducted  the  business  and 
shares  in  the  profits.     Cox  v.  John,  32  Ohio  St.  532. 

2  Sypher  t'.  McHenry,  18  Iowa,  232.  After  the  trust  is  ended  and  the 
trustee  has  made  a  sale  under  his  power,  the  trustee,  acting  in  good  faith, 
may  deal  with  the  property  and  become  the  owner  of  what  was  trust  prop- 
erty by  purchase  or  otherwise.  Bush  v.  Shearman,  80  111.  160.  But  the 
court  will  carefully  see  that  good  faith  is  observed;  and  a  settlement  of 
guardian's  account  and  conveyance  of  minor's  property  on  the  day  he 
becomes  of  age,  and  while  he  is  unadvised  of  his  rights,  under  the  influ- 
ence and  control  of  others,  is  not  binding,  and  can  only  be  upheld  by  clear 
proof  that  it  is  just  and  equitable.  Berkmeyer  v.  Kellerman,  32  Ohio  St. 
239.  See  Sugd.  V.  &  P.  (8th  Am.  ed.)  685  et  seq.,  where  the  rules  are 
clearly  stated  by  Lord  St.  Leonards,  and  the  American  cases  are  all  col- 
lected and  arranged  by  Hon.  J.  C.  Perkins. 

(a)  The    trustee    cannot   retain  the     purchaser     would      resell     to 

the  benefit  of  a  purchase,  by  which  the  trustee.     Ee   Postlethwaite,  59 

a  friend  bought   at   his   sale   on   a  L.   T.  68. 
mere   friendly   understanding    that 

284 


CHAP.  VI.]     RENEWAL  OF  LEASES  BY  TRUSTEES.     [§  199. 

cencc'  But  if  he  has  made  a  fair  sale  to  a  tliird  party,  it 
has  been  held  that  the  trustee  could  repurcliase  from  his 
trustee,  though  the  transaction  will  be  jealously  scrutinized 
in  equity. 2 

§  198.  The  cestui  que  trust  alone  can  avoid  such  convey- 
ances.^ They  are  at  his  option.  And  if  they  are  found  to 
be  beneficial  to  him  or  otherwise,  he  may  compel  the  trustee 
to  complete  a  purchase  and  take  the  estate  and  pay  the 
purchase-money.  ^ 

§  199.  The  above  rule  docs  not  apply  to  mere  naked  or 
dry  trustees  who  practically  have  no  interest  in  or  power 
over  the  estate,  as  trustees  to  preserve  contingent  re- 
mainders." Where  the  trustee  has  no  duty  to  perform,  as 
where  one  is  trustee  in  fee  for  another  in  fee,  having  no 
authority  over  the  estate,  and  standing  in  no  relation  of 
influence  over  the  cestui  que  trust,  the  person  named  as 
trustee  may  purchase;^  and  if  the  cestui  que  trust  make  all 
the  arrangements  for  the  sale,  such  as  plans,  notices,  choice 
of  auctioneer,  terms  and  conditions,  and  the  trustee  is  in  no 
situation  to  obtain  any  exclusive  information,  the  court  will 
deal  with  the  contract  as  with  contracts  between  other 
parties."  A  mortgagee  may  purchase  of  the  mortgagor  under 
a  decree  of  foreclosure  or  otherwise,^  but  if  the  mortgage 
contains  a  power  of  sale,  the  mortgagee  becomes  a  trustee  of 

1  Pearce  v.  Gamble,  72  Ala.  341. 

2  Foxworth  V.  White,  72  Ala.  224. 
'  Rice  V.  Cleghorn,  21  Ind.  80. 

*  Thorp  V.  McCullum,  1  Gilm.  624 ;  McClure  v.  Miller,  1  Bail.  Ch.  107; 
Lister  r.  Lister,  G  Ves.  031  ;  Ex  parte  Reynolds,  5  Ve.s.  707  ;  Sanderson  r. 
Walker,  13  Ves.  003;  Larco  v.  Casaneuava,  30  Cal.  560. 

6  Parker  i'.  White,  11  Ves.  226  ;  Naylor  v.  Winch,  1  S.  &  S.  567;  Sut- 
ton r.  Jones,  15  Ves.  587;  Pooley  v.  Quilter,  4  Drew.  189, 

«  Pooley  V.  Quilter,  4  Drew,  189. 

^  Coles  IK  Trecothick,  9  Ves.  248;  Monro  v.  Allaire,  2  Caines'  Cas. 
183;  Salmon  v.  Cutts,  4  De  G.  &  Sm.  131. 

8  Iddings  V.  Bruen,  4  Sandf.  Ch.  223;  Murdoch's  Case,  2  Bland,  161; 
Knight  V.  Majoribanks,  2  Mac.  &  G.  10;  2  Hall  &  T.  308;  Rhodes  v. 
Sanderson,  3G  Cal.  414. 

285 


§  199.]  CONSTRUCTIVE    TRUSTS.  [CHAPc    VI. 

the  power  of  sale  for  the  mortgagor,  and  neither  he  nor  his 
agents,  attorneys,  or  auctioneers,  can  purchase  for  them- 
selves or  others;  or,  if  they  do,  they  become  constructive 
trustees.^  (a)  And  so  the  pledgee  of  stock  cannot  buy  the 
same  even  at  the  broker's  board. ^     Where  land  is  devised  to 

1  Dobson?.'.  Racey,  4  Seld.  216;  Waters  v.  Groom,  11  CI.  &  Fin.  684; 
Mapps  >:  Sharpe,  32  111.  13;  Murray  v.  Vanderbilt,  39  Barb.  140;  Black- 
ley  V.  Fowler,  31  Cal.  326;  Olcott  v.  Tioga  R.  R.  Co.,  27  N.  Y.  546;  El- 
liott V.  Wood,  53  Barb.  285;  Thornton  v.  Jarvin,  43  Mo.  153;  Wall  v. 
Town,  45  111.  493  ;  Robinson  v.  Cudwin,  41  Ala.  693;  Allen  i'.  Chatfield, 
3  Minn.  435  ;  Montague  v.  Dawes,  14  Allen,  369.  See  Bailey  v.  JEtna, 
Insurance  Co.,  10  Allen,  280;  Fowle  t;.  JNIerrill,  10  Allen,  350;  Smith  r. 
Provin,  4  Allen,  516;  Woodlee  v.  Burch,  43  Mo.  231 ;  Dyer  v.  Shurtleff, 
112  Mass.  165.  See  Scott  v.  Maun,  33  Tex.  721.  But  a  second  mort- 
gagee may  purchase  under  a  power  of  sale  contained  in  a  prior  mortgage. 
Parkinson  v.  Hanbury,  1  Dr.  &  Sm.  143  ;  2  De  G.,  J.  &  S.  455;  Shaw  v. 
Bunney,  34  L.  J.  Ch.  257;  11  Jur.  (xV.  s.)  99;  2  De  G.,  J.  &  S.  468; 
Kirkwood  v.  Thompson,  11  Jur.  (n.  s.)  385;  2  De  G.,  J.  &  S.  613. 
And  it  is  said  that  the  administrator  of  the  mortgagee  may  purchase. 
Woodlee  v.  Burch,  43  Mo.  231.  And  so  a  trustee  may  buy  the  equity 
of  redemption  in  property  on  which  he  holds  a  mortgage  as  trustee. 
Britton  v.  Lewis,  8  Rich.  Eq.  271 ;  Eldridge  r.  Smith,  5  Shaw,  484. 
The  power  of  sale  is  a  power  coupled  with  an  interest,  and  is  irrevocable. 
Capron  v.  Attleborough  Bk.,  11  Gray,  492.  And  can  be  executed  after 
the  death  of  the  mortgagor.  Varnum  v.  Meserve,  8  Allen,  158;  Harne- 
hall  V.  Orndorff,  35  Md.  340.  As  to  form  of  notice,  see  Roche  v.  Farns- 
worth,  106  Mass.  509,  and  remarks  of  Endicott,  J.,  upon  this  case  in 
Dyer  v.  Shurtleff,  112  Mass.  165.  Equity  will  aid  the  defective  execution 
of  a  power  of  sale  in  a  mortgage  in  favor  of  a  bona  fide  purchaser  who 
has  paid  his  money  for  the  estate.  Beatty  v  Clark,  20  Cal.  11 ;  Rowon 
V.  Lamb,  4  Green,  468.  The  whole  matter  of  power  of  sale  in  mortgages, 
with  the  authorities,  is  stated  in  1  Sugd.  V.  &  P.  65-68.  If  a  power  of 
sale  in  a  mortgage  provides  for  the  payment  of  the  expenses  of  the  sale, 
counsel  fees  may  be  paid.  Varnum  r.  Meserve,  8  Allen.  158.  But  the 
mortgagee  can  receive  nothing  for  his  own  time  and  trouble  in  executing 
the  power.     Imboden  v.  Atkinson.  23  Ark.  622. 

•2  Maryland  Ins.  Co.  v.  Dalrymple.  25  ]\Id.  242 ;  Baltimore  Ins.  Co.  v. 
Dalrymple,  id.  269;  Byron  r.  Rayner,  id.  424. 

(a)  In    Massachusetts,    a    mort-  118  Mass.  554.     The  power  of  sale 

gage  with  power  of  sale  usually  au-  may   be  fully  executed   by  one   to 

thorizes  the  mortgagee  to  become  a  whom     the     mortgage     has     been 

purchaser ;  in  such  case,  he  may,  if  assigned      as     collateral     security. 

so   authorized,  make   the   deed   di-  Holmes  v.  Tui'ner's  Falls  Co.,  150 

rectly   to   himself.      Hall   u.   Bliss.  Mass.  536. 
286 


CnAP.    VI.]         CONTRACTS   OF    GUARDIAN    WITH    WARD.  [§  200. 

one  charged  with  the  payment  of  an  annuity  to  anotlier  for 
life,  the  devisee  does  not  stand  in  the  position  of  trustee  for 
the  annuitant,  and  he  may  purchase  the  annuity  at  a  profit.' 
So  a  cestui  que  trust  may  devise  property  to  his  trustee,  and 
there  is  no  presumption  against  such  gifts.^  A  cestui  que 
trust  may  purchase  the  trust  property  or  other  property  of 
the  trustee,  and  the  purchase  will  be  good;  at  least  the 
trustee  cannot  set  it  aside.^  But  sales  to  a  cestui  que  trust 
involving  an  investment  of  the  trust  fund,  or  any  dealing  in 
relation  to  it,  may  be  avoided  by  the  cestui  que  trusts 

§  200.  Conveyances  from  wards  to  guardians  are  investi- 
gated with  more  severity  by  courts  than  contracts  between 
parent  and  child,  for  the  reason  that  there  is  not  that  family 
relationship  and  affection  which  sustain  and  uphold  family 
settlements.  The  relation  between  guardian  and  ward  is 
one  of  great  influence  over  the  ward,  and  is  generally 
founded  upon  the  pecuniary  relation  between  them.  While 
the  relation  actually  subsists,  no  contracts  can  be  made.^ 
But  if  a  contract  or  conveyance  is  made  by  the  ward  to  the 
guardian  just  after  attaining  his  property,  and  before  a  full 
settlement  is  made,  and  while  the  influence  of  the  guardian 
is  still  in  full  force,  courts  will  examine  it  in  all  itc  aspects; 
and  the  guardian  claiming  under  such  a  conveyance  must 
satisfy  the  court  that  the  transaction  was  fair  and  proper, 
and  that  it  did  not  proceed  from  miduc  influence,  or  from 
any  fear,  hope,  or  other  unworthy  motive  induced  in  the 
mind  of  the  ward  by  the  conduct  of  the  guardian.^     If  there 

1  Powell  V.  Murray,  2  Edw.  636. 

2  Stump  V.  Gaby,  5  De  G.,  M.  &  G.  623;  Hindson  r.  Wetherill,  id.  301. 
But  see  Waters  v.  Thorn,  22  Beav.  547. 

8  Walker  v.  Brungard,  13  Sm.  &  M.  723;  Bank  r.  Macy.  4  Tnd.  302. 

*  McCants  V.  Bee,  1  McCord,  Ch.  382;  Chester  v.  Greer,  f)  Humph.  26; 
AVade  >•.  Harper,  3  Yerg.  383.  Where  a  sale  of  land  by  tru.stce  of  a  bank 
is  sought  to  be  avoided  by  the  cestui  que  trust,  the  improvemont-s  cannot  be 
made  a  charge  against  the  soller.     Paine  r.  Irwin,  16  Hun.  390. 

6  Dawson  v.  Massey,  1  B.  &  B.  226;  Blackmore  r.  Shelby.  8  Ilumjih. 
439;  Bostwick  v.  Atkins,  3  Comst.  .53  ;  Gallatian  r.  Cunningham,  8  Cow. 
361 ;  Clarke  v.  Devereaux,  1  S.  C.  172. 

*  Richardson  v.  Linney,  7  B.  Mon.  471 ;  Andrews  v.  Jones,  10  Ala. 

287 


§  200.]  CONSTRUCTIVE   TRUSTS.  [CHAP.    VI. 

is  the  slightest  suspicion  of  any  improper  motive  for  a  gift, 
as  that  a  better  or  more  speedy  settlement  may  be  obtained, 
the  conveyance  will  be  avoided,  and  the  guardian  will  con- 
tinue to  hold  the  property  in  trust  for  the  ward.  Where  a 
guardian  improperly  procures  an  infant's  land  to  be  sold  by 
decree  of  a  court,  the  conveyance  will  be  avoided ;  but  if  the 
land  has  been  conveyed  to  an  innocent  purchaser  without 
notice,  the  title  will  be  allowed  to  stand.  ^  (a)  The  influence 
of  the  guardian  over  the  ward  may  be  so  subtle,  and  the 
motives  of  the  gift  may  be  of  such  a  nature,  as  to  baffle  a 
court  of  equity  in  reaching  them.  Therefore  it  has  been 
said  that,  although  the  gift  from  the  ward  may  be  a  highly 
moral  act,  and  alike  creditable  and  honorable  to  him,  yet,  if 
the  court  is  not  entirely  satisfied  by  clear  demonstration 
that  the  gift  was  properly  made,  it  will  be  set  aside.  Noth- 
ing can  be  allowed  to  stand  that  proceeds  from  the  pressure 
of  the  relation  of  guardian  and  ward  fresh  upon  the  mind  of 
the  ward. 2     But  if  the  relation  has  entirely  ceased,  and  a 

400;  Eberts  v.  Eberts,  54  Penn.  St.  110;  Dawson  v.  Massey,  1  B.  &  B, 
229;  Aylward  v.  Kearney,  2  id.  463;  Wright  v.  Proud,  13  Ves.  136; 
Wedderbum  v.  Wedderburn,  4  M.  &  C.  41 ;  Mulhallen  v.  Marum,  3  Dr. 
&W.  317;  Gary  y.  Mansfield,  1  Ves.  379;  Garvin  v.  Williams,  44  Mo. 
465;  Amer.  Law  Reg.  vol.  11  (n.  s.),  656;  Ashton  r.  Thompson,  32 
Minn,  25. 

1  Gwinn  v.  Williams,  30  Md.  376. 

2  Hatch  V.  Hatch,  9  Ves.  297 ;  Hylton  v.  Hylton,  2  Ves.  548  ;  Pierce 
V.  Waring,  id.,  and  1  Ves.  380,  and  1  P.  Wms.  120,  n.;  1  Cox,  125; 
Wood  ?'.  Downes,  18  Ves.  126;  Johnson  v.  Johnson,  5  Ala.  90;  Williams 
V.  Powell,  1  Ired.  Eq.  460 ;  Caplinger  v.  Stokes,  Meigs,  175 ;  Somes  v. 
Skinner,  16  Mass.  348;  AYhitman's  App.,  28  Penn.  St.  348;  Hawkin's 
App.,  32  id.  263;  Scott  v.  Freeland,  7  Sm.  &  M.420;  Garvin  v.  Williams, 
44  Mo.  465. 

(a)  A  guardian,  nnlike  a  trustee,  131  111.   182;  Poullain  v.   Poullain, 

hasno  title  to  his  ward's  property;  76  Ga.    420.      The    probate   court 

suits  must  be  brought  in  the  latter's  may  authorize  or  ratify  a  guardian's 

name;   and  contracts  made  by  the  conveyance  of  his  ward's  property, 

guardian  bind  only  himself.     Rich-  Doty    v     Hubbard,     55    Vt.    278; 

mond   V.    Adams    Nat.    Bank,    152  Hain's    Estate,   167    Penn.    St.   55; 

U.  S.  359 ;  Lombard  v.  Morse,  155  State  v.  Hamilton  County  Com'rs, 

Mass.    136 ;    Dalton    v.   Jones,   51  39  Ohio  St.  58. 
Miss.   585;    Kingsbury  v.   Powers, 
288 


CHAP.    VI.]       COXTKACTS   OF    PAUENT.S    WITH    CIIILDKF.X.       [§  201. 

full  settlement  has  been  made,  and  the  ward  has  obtained  the 
full  control  of  his  property,  and  if  suHicient  time  has  elapcd 
to  emancipate  the  mind  of  the  ward  from  all  undue  imjjres- 
sions  and  influences,  it  may  not  only  be  proper,  but  highly 
meritorious  and  honorable,  for  a  ward  to  make  a  fitting  gift 
to  a  guardian  who  has  faitlifully  performed  his  trust;  and  a 
court  fully  satisfied  upon  these  points  would  uphold  it.' 

§  201.  In  the  same  manner  courts  of  equity  carefully 
scrutinize  contracts  between  parents  and  children  by  which 
the  property  of  children  is  conveyed  to  parents.  The  posi- 
tion and  influence  of  a  parent  over  a  child  are  so  controlling, 
that  the  transaction  should  be  carefully  examined,  and  sales 
by  a  child  to  a  parent  must  appear  to  be  fair  and  reasonable. ^ 
Such  contracts  are  not,  however,  prima  facie  void,  but  there 
must  be  some  affirmative  proof  of  undue  influence  or  other 
improper  conduct  to  render  the  transaction  void ;  for  while 
the  parent  holds  a  powerful  influence  over  the  child,  the  law 
recognizes  it  as  a  rightful  and  proper  influence,  and  does  not 
presume,  in  the  first  instance,  that  a  parent  would  make  use 
of  his  authority  and  parental  power  to  coerce,  deceive,  or 
defraud  the  child. ^  Therefore  it  is  always  necessary  to 
prove  some  improper  and  undue  influence,  in  order  to  set 
aside  contracts  between  parents  and  children.*  (a)  As  pur- 
chases by  a  parent  in  the  name  of  a  child  do  not  create  a 
resulting  trust,  but  are  presumed,  in  the  first  instance,  to 
be  the  advances  made  by  the  parent  to  the  child,  so  convey- 

1  Hylton  V.  Hylton,  2  Ves.  .547;  Hatch  v.  Hatch,  9  Ve.s.  54S. 

2  Blunder  v.  Barker,  1  P.  Wms.  639  ;  Wallace  r.  Wallace.  2  Dr.  &  W. 
452;  Cocking  v.  Pratt,  1  Ves.  401;  Heron  v  Fleron,  2  Atk.  ISl ;  Carpen- 
ter V.  Heriot,  1  Eden,  328;  Youna;  v.  Peachey,  2  Atk.  258. 

8  Jenkins  v.  Pye,  12  Pet.  2-53,  254. 

*  Cocking  r,  Pratt,  1  Ves.  401 ;  Hawes  v.  Wyatt.  3  Bro.  Ch.  l.')6;  2  Cox, 
263;  Heron  v.  Heron,  2  Atk.  161;  Young  v.  Peachey,  id.  251;  Carpenter 
r.  Heriot,  1  Eden,  328. 

(a)  If   a   father    abandons    the  Hoblyn  v.  Hoblyn,  41  Ch.  D.  200. 

benefit  which  he  unfairly  obtains  by  See  Bainbrigge  v.   Browne,  18  Ch. 

a  settlement  from  his  child,  the  rest  D.  188;  Readdy  v.  Penderjast,  55 

of  the  settlement  may  stand  good.  L.  T.  767. 

VOL.  I.  —  19  ogg 


§  202.]  CONSTEUCTIVE   TRUSTS.  [CHAP.   VI. 

ances  to  the  parent  by  the  child  may  be  a  proper  family 
arrangement,  and  for  the  best  interest  of  the  child.  ^  If  no 
such  considerations  can  be  found  in  the  case,  and  the  con- 
veyance, after  all  allowances  are  made,  is  found  to  have  been 
wrongfully  obtained  from  the  child,  a  court  of  equity  will  set 
it  aside  or  convert  the  parent  into  a  trustee. ^  But  the 
proceedings  must  be  had  at  once.  The  child  cannot  wait 
until  the  parent's  death  or  until  the  rights  of  other  parties 
have  intervened.^  The  same  rules  apply  when  contracts  are 
made  between  children  and  those  who  have  put  themselves 
in  loco  parentis  ;^  and  so  when  family  relatives  make  use  of 
their  position  and  influence  to  obtain  undue  and  improper 
advantages,  as  where  two  brothers  obtained  a  deed  from  a 
sister,   it  was  set  aside. ^ 

§  202.  The  relation  of  attorney  and  client  is  one  of 
especial  confidence  and  influence,  and  while  that  relation 
continues   the   attorney  cannot  receive  gifts  or  make   pur- 

1  Blackborn  v.  Edq-eley,  1  P.  Wms.  607 ;  Cooke  v.  Burtchaell,  2  Dr.  & 
W.  165 ;  Browne  v.  Carter,  5  Ves.  877  ;  Tendrill  v.  Smith,  2  Atk.  85  ; 
Cory  V.  Cory,  1  Ves.  19  ;  Kinchant  v.  Kinchant,  3  Bro.  Ch.  374  ;  Twed- 
dell  V.  Tweddell,  T.  &  R.  14  ;  Hartopp  v.  Hartopp,  21  Beav,  259  ;  Hannah 
V.  Hodgson,  30  Beav.  19. 

2  King  V.  Savery,  1  Sm.  &  Gif.  271;  5  H.  L.  Ca.  627;  Berdoe  v.  Daw- 
son, 11  Jur.  (n.  s.)  254;  Bury  ?;.  Oppenheim,  26  Beav.  594 ;  Baker  v. 
Bradley,  7  De  G.,  M.  &  G.  597;  35  Eng.  L.  &  Eq.  449;  Field  v.  Evans, 
15  Sim.  375  ;  Slocumb  v.  Marshall,  2  Wash.  C.  C.  397;  Brice  v.  Brice,  5 
Barb.  533;  Whelan  v.  Whelan,  2  Cow.  537;  Young  v.  Peachey,  2  Atk. 
2.54;  Glisson  v.  Ogden,  id.  258;  Baker  v.  Tucker,  2  Eng.  L.  &  Eq.  1 ; 
Blackborn  v.  Edgeley,  1  P.  Wnis.  607  ;  Morris  v.  Burroughs,  1  Atk.  402 ; 
Tendrill  v.  Smith,  2  Atk.  85;  Hoghton  v.  Hoghton,  15  Beav.  278  ;  Cooke 
V.  Lamotte,  id.  234 ;  Wallace  v.  Wallace,  2  Dr.  &  W.  452  ;  Hunter  v. 
Atkins,  3  IM.  &  K.  146 ;  Archer  v.  Hudson,  7  Beav.  551  ;  Findley  v.  Pat- 
terson, 2  B.  ]\Ion.  76. 

8  Wright  r.  Vanderplank,  2  K.  &  J.  1;  8  De  G.,  M.  &  G.  133;  Brown 
V.  Carter,  5  Ves.  877;  Taylor  v.  Taylor,  8  How.  201;  Crispell  v.  Dubois, 
4  Barb  393. 

*  Archer  v.  Hudson,  7  Beav.  551;  Maitland  v.  Backhouse,  16  Sim.  68; 
Maitland  v.  Irving,  15  id.  437. 

5  Sears  v.  Shafer,  2  Seld.  268;  Hewitt  v.  Crane,  2  Halst.  Ch.   159  j 
Boney  v.  Hollingsworth,  23  Ala.  690. 
290 


CHAP.    VI.]  ATTORNEY   AND   CLIENT.  [§  202. 

chases  from  the  client.'  It  has  been  said  in  some  cases  that 
the  attorney  is  absolutely  prohibited  from  entering  into  con- 
tracts with  his  clients.2  If  the  rule  is  not  quite  so  peremp- 
tory as  this,  it  at  least  goes  to  the  extent  of  prohibiting  him 
from  contracting  with  his  client  for  an  interest  in  the  sub- 
ject-matter of  the  litigation.^  The  client  is  so  completely  in 
the  hands  of  the  attorney  in  relation  to  the  subject-matter 
of  litigation,  that  it  would  be  almost  impossible  for  him  to 
enter  into  a  free  and  fair  contract  in  regard  to  it.  Besides, 
it  is  against  the  policy  of  the  law  that  attorneys  should 
obtain  interests  in  litigated  claims,  and  exercise  their  offices 
under  such  influences  of  gain.  In  all  cases  the  burden  is 
upon  the  attorney  making  a  purchase  of  a  client,  to  vindicate 
the  transaction  from  all  suspicion.'*  (a)     And  if  the  attorney 

1  Welles  l:  Middleton,  1  Cox,  125;  Wright  v.  Proud,  13  Ves.  137; 
Cheslyn  v.  Dalby,  2  Y.  &  C.  Ch.  194;  Hunter  >:  Atkins,  3  M.  &  K.  113; 
Wood  r.  Downes,  18  Ves.  126;  Savery  v.  King,  35  Eng.  L.  &  Eq.  100; 
De  Montmorency  v.  Devereaux,  7  CI.  &  Fin.  188;  Jones  v.  Tripp,  Jac. 
322;  Godard  v.  Carlisle,  9  Price,  169;  Edwards  v.  Meyrick,  2  Hare,  68. 

2  Wright  V.  Proud,  13  Ves.  138;  Holman  v.  Loynes,  4  De  G.,  M.  &  G. 
270;  Thompson  v.  Judge,  3  Dr.  306;  19  Jur.  583;  24  L.  J.  Ch.  785; 
Henry  l\  Raiman,  25  Penn.  St.  354;  West  v.  Raymond,  21  Ind.  305; 
Atkins  r.  Delmage,  12  Ir.  Eq.  2;  Webster  v.  King,  33  Cal.  14S;  Frank's 
App.,  59  Penn.  St.  100;  Lovatt  v.  Kuipe,  12  Ir.  Eq.  124;  Purcell  i-.  Buck- 
ley, id.  55. 

8  Oldham  v.  Hand,  2  Ves.  259;  Wood  v.  Downes,  18  Ves.  120;  Hall 
V.  Hallett,  1  Cox,  134;  West  v.  Raymond,  21  Ind.  305. 

*  Newman  v.  Payne,  2  Ves.  Jur.  199;  Welles  v.  Middleton,  1  Cox, 
112;  4  Bro.  P.  C.  245;  Harris  v.  Tremenheere,  15  Ves.  34;  Hunter  r. 
Atkins,  3  M.  &  K.  135  ;  Cane  v.  Allen,  2  Dow,  289;  Champion  v.  Rigby, 
1  R.  &  M.  5-39  ;  Bellow  v.  Ru.ssell,  1  B.  &  B.  107;  Gibson  i:  Jeyes,  6  Ves. 
277;  Uppington  v.  Buller,  2  Dr.  &  W.  184;  Walmsley  v.  Booth,  2  Atk. 

(a)   See  Liles  r.  Terry,  [ISO.'i]  2  lawful,   but    a    champertous    trust 

Q.  B.  079;  United  States  v.  Cothn,  is    wholly  void.      Johnson   r.    Van 

83  F.  R.  337;  Donahoe  v.  Chicago  Wyck,  4  App.  D.  C.  294;  Frink  v. 

Cricket  Club  (111),  52  N.  E.  351;  McCorab,  60  F.  R.  486.      If  an  at- 

Gibsoii  V.  Gossom  (Ark.),  47  S.  W.  torney  purchases   his   client's   real 

237  ;  Kofued   v.   Gordon  (Cal.),    54  estate  at  a  judicial  sale,  the  client 

Pac.    1115;    IMorrison    v.    Thomas  may   elect  to  hold  him   a  trustee. 

(Texas),  48  8.   W.  500;   Brigham  Olson  r.   Lamb  (Neb.),  76  N.  W. 

u.  Newton,  49  La.  Ann.  1539  ;  infra,  433.      See  Ilerr  r.  Payson,  157  111. 

§  212,  n.  (a).     Contingent  fees  are  244;  Ellis  v.  Allen,  99  Wis.  598. 

291 


§  202.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

cannot  produce  evidence  that  puts  the  transaction  clearly 
l)cyond  all  doubt  or  question,  it  will  be  set  aside  or  he  will 
be  converted  into  a  trustee.^  This  disability  of  an  attorney 
continues  as  long  as  the  relation  of  attorney  and  client  con- 
tinues, and  as  much  longer  as  the  influence  of  the  relation 
can  be  supposed  to  extend.  If  the  relation  has  ceased,  but 
the  influence  of  the  relation  continues  to  affect  the  minds 
of  the  parties,  all  contracts  made  under  the  influence  will  be 
avoided.  2  But  if  the  relation  has  entirely  ceased,  and  there 
can  be  supposed  to  be  no  influence  remaining,  the  rule  will 
not  apply.  ^  And  so,  if  an  attorney  makes  a  purchase  of  a 
client  of  property  entirely  disconnected  with  the  subject  of, 
the  litigation,  and  the  transaction  is  in  all  respects  as  if  it 
had  taken  place  between  strangers,  the  rule  will  not  apply.  ^ 
So  the  rule  does  not  apply  to  a  gift  to  an  attorney  in  the  will 
of  a  client,  if  the  will  is  a  good  and  valid  instrument  in 
the  courts  where  it  is  presented  for  probate;^  and  a  voidable 
conveyance  to  an  attorney  may  be  confirmed  in  the  will  of 

30 ;  Montesquieu  v.  Sandys,  18  Ves.  302 ;  Edwards  v.  Meyrick,  2  Hare, 
60;  Wood  V.  Downes,  18  Ves.  120  ;  Lewis  v.  Hillman,  3  H.  L.  Cas.  607  ; 
Salmon  v.  Cutts,  4  De  G.  &  Sm.  131;  Holman  v.  Loynes,4  De  G.  M.  &  G. 
270;  King  v.  Savery,  5  H.  L.  Cas.  627;  Robinson  v.  Briggs,  1  Sm.  &  Gif. 
184;  Greenfield's  Est.,  2  Harris,  489;  Merritt  v.  Lambert,  10  Paige,  357; 
WaUis  V.  Loubat,  2  Denio,  607  ;  Howell  v.  Ransom,  11  Paige,  538;  Evans 
V.  Ellis,  5  Denio,  640;  Barry  v.  Whitney,  3  Sand.  S.  C.  696;  Hawley  v. 
Cramer,  4  Cow.  717;  Mott  v.  Harrington,  12  Vt.  199;  Miles  v.  Ervin, 
1  McCord,  Ch.  524;  Waters  v.  Thorn,  22  Beav.  547;  Bank  v.  Tyrrell, 
27Beav.  273;  10  H.  L.  Cas.  26;  Wall  v.  Cockerell,  id.  229;  Brown  v. 
Kennedy,  33  Beav.  133;  Smedley  v.  Varley,  23  Beav.  359;  O'Brien  v. 
Lewis,  4  Gif.  221 ;  Corley  v.  Stafford,  1  De  G.  &  J.  238 ;  Spring  v.  Pride, 
10  Jur.  (n.  s.)  646;  Gresley  v.  Mousley,  4  De  G.  &  J.  78;  Barnard  v. 
Hunter,  2  Jour.  (n.  s.)  1213  :  Douglass  v.  Culverwell,  31  L.  J.  Ch.  65, 
543;  Brock  r.  Barnes,  40  Barb.  521. 

1  Ibid,;  Smith  v.  Brotherline,  62  Penn.  St.  461. 

2  Henry  v.  Raiman,  25  Penn.  St.  354;  Leisenring  v.  Black,  5  Watts, 
303;  Hockenbury  v.  Carlisle,  5  Watts  &  S.  350. 

3  Wood  V.  Downes,  18  Ves.  127. 

4  Edwards  v.  Meyrick,  2  Hare,  60;  Bellows  v.  Russell,  1  B.  &  B.  104 ; 
Montesquieu  v.  Sandys,  18  Ves.  302. 

^  Hindson  v.  Wetherell,  5  De  G.,  M.  &  G.  30;  overruling  same  case, 
1  Sm.  &  G.  604.      But  see  23  L.  Rev.  442,  and  notes  to  1  Sm.  &  G.  604. 
292 


CHAP.   VI.]  ATTORNEY   AND   CLIENT.  [§  203. 

the  client.i  But  the  rule  will  not  apply  to  an  attorney  inci- 
dentally consulted  concerninj^  some  jjoint  of  the  litigation, 
but  who  is  not  employed  or  confided  in,  for  the  management 
of  the  case,^  nor  will  it  ajjply  to  the  attorney  upon  the  other 
side. 3  Nor  will  it  ajtj)ly  alter  the  relation  has  ceased  and 
the  attorney  has  assumed  a  hostile  position  in  endeavoring  to 
collect  his  fees.*  But  it  has  been  held  that  an  attorney 
having  a  lien  or  an  execution  in  favor  of  his  client  could  not 
buy  in  land  of  his  client  at  a  sale  thereof  on  execution.^  If 
an  attorney  takes  an  absolute  deed  from  a  client  in  payment 
of  his  fees,  the  court  may  order  it  to  stand  as  a  mortgage 
security,^  and  where  there  was  a  fair  agreement  that  an 
attorney's  fees  should  be  charged  upon  the  estate,  if  recov- 
ered, the  court  allowed  it  to  stand  in  the  absence  of  undue 
influence,'  and  so  the  court  will  not  interfere  after  a  great 
lapse  of  time  where  the  sale  was  for  full  value. ^  Where  an 
attorney  buys  land  at  an  execution  sale  in  favor  of  his  client, 
the  latter  may  elect  to  hold  the  lawyer  his  trustee,  but  must 
make  his  choice  within  a  reasonable  time.^ 

§  203.  All  the  dealings  between  attorney  and  client  will 
be  carefully  examined  by  courts,  and  no  purchase  of  a 
client's  property  will  be  allowed  to  stand. '*^  Thus  a  bond 
obtained  from  a  poor  and  distressed  client,  the  consideration 

1  Stump  V.  Gaby,  2  De  G.,  M.  &  G.  G23.  But  see  Waters  v.  Thorn, 
22  Beav.  417. 

2  Dobbins  v.  Stevens,  17  S.  &  R.  13  ;  Deviuuey  v.  Norris,  8  AVatts, 
314. 

8  Bank  v.  Foster,  8  Watts,  305. 

*  Johnson  v.  Fesemeyer,  3  De  G.  &  J.  13;  Sniith  v.  Brotherline,  G2 
Penn.  St.  461. 

6  Stockton  V.  Ford,  11  How.  232. 

^  Pearson  t'.  Benson,  28  Beav.  508 ;  Morgan  r.  Higgins,  5  Jour.  (s.  s.) 
23(5. 

■^  Moss  V.  Bainbridge,  6  De  G.,  M.  &  G.  292 ;  Blagrave  i".  Routh,  2  K. 
&  J.  509. 

*  Clanricarde  r.  Ilenning,  30  Beav.  175. 

9  Ward  V.  Brown,  87  Mo.  408. 

i"  Moore  v.  Brackin,  27  111.  23 ;  Smith  v.  Brotherline,  G2  Penn.  St 
461. 

293 


§  204.]  CONSTRUCTIVE   TRUSTS.  [CHAP.   VI. 

not  appearing  with  sufficient  clearness,  was  set  aside,  ^  and 
so  a  bond  was  not  allowed  to  stand  except  for  the  amount 
of  fees  actually  due,^  and  a  judgment  was  inquired  into  after 
a  considerable  lapse  of  time.^  And  even  where  a  barrister 
married  a  lady  client,  and  undertook  to  draw  the  marriage 
settlement,  according  to  the  stipulations  between  them,  it 
was  held  to  be  open  to  investigation  by  the  court.*  (a)  The 
same  rules  are  applied  to  all  persons  standing  in  the  relation 
of  attorneys  or  confidential  advisers,  although  they  are  not 
attorneys  in  fact;  thus  clerks  in  an  attorney's  office,  who  do 
business  for  the  client  and  obtain  a  knowledge  of  his  affairs 
and  his  confidcDce,  cannot  avail  themselves  of  their  position 
to  make  favorable  bargains  or  purchases,^  and  so  one  who 
acts  as  a  confidential  adviser  in  a  matter  before  a  magistrate, 
where  attorneys  are  not  employed,  is  under  the  same  obliga- 
tions and  disabilities.^  Of  course,  if  there  is  actual  fraud 
committed  by  an  attorney  in  a  purchase  of  a  client,  the 
transaction  will  be  summarily  dealt  with."^ 

§  204.  The  same  principles  apply  to  transactions  between 
all  persons  standing  in  confidential  and  influential  relations 
to  each  other.  The  person  thus  possessing  the  confidence  of 
another,  and  having  an  influence  by  reason  of  such  confi- 
dence, cannot  use  his  influence  to  obtain  contracts,  convey- 
ances, or  property,  and  the  burden  of  proof  is  always  on  the 

1  Proof  V.  Hines,  Cas.  t.  Talb.  Ill;  Walmesley  v.  Booth,  2  Atk.  28. 

2  Newman  v.  Payne,  4  Bro.  Ch.  350 ;  2  Ves.  Jr.  200 ;  Langstaffe  v. 
Taylor,  M  Ves.  262;  Pitcher  v.  Rigby,  9  Price,  79;  Jones  v.  Roberts,  9 
Beav.  419. 

3  Drapers'  Company  v.  Davis,  2  Atk.  295. 
*  Corley  v.  Stafford,  1  De  G.  &  J.  258. 

6  Hobday  v.  Peters,  28  Beav.  349;  6  Jur.  (n.  s.)  794;  Cowdry  v.  Day, 
5  Jur.  (n.  s.)  1199  :  Gardner  v.  Ogden,  22  N.  Y.  327  ;  Poillou  v.  Martin, 
1  Sandf.  Ch.  569. 

6  Buffalow  V.  Buffalow,  5  Dev.  &  Bat.  Eq.  241. 

'  Webster  v.  King,  33  Cal.  348. 

(a)  See   Clark   v.    Girdwood,   7    Luddy's  Trustee  v.  Peard,  33  Ch.  D. 
Ch.  D.  9;  Tyars  v.  Alsop,  61  L.  T.     500. 
8 ;  James  v.  Kerr,  40  Ch.  D.  449 ; 
294 


CHAT.    VI.]  ADMINISTRATORS    AND    EXECL'TORS.  [§  205. 

party  standing  in  the  position  of  influence,  to  show  the 
transaction  just  and  fair.'  Quasi  guardians,  husband  and 
wife,  conlidcntial  advisers,  stewards,  keepers  of  asylums  in 
which  the  quasi  ward  may  have  been  treated,  and  confi- 
dential medical  advisei-s,  all  come  witliin  the  rule.^  But 
the  mere  fact  that  the  donee  is  an  attending  piiysician,  there 
being  no  confidential  relation,  will  not  avoid  a  deed.^  iiut 
the  administrator  of  a  deceased  ])artner  may  buy  the  partner- 
ship })roi)erty,  although  he  may  be  a  surviving  partner.* 

§  205.  Upon  the  same  principles,  administrators  and 
executors  cannot  purchase  the  estate  under  their  charge  to 
administer.  They  cannot  purchase  directly  of  themselves, 
nor  from  the  heirs,  legatees,  devisees,  or  other  persons 
interested  in  the  estate,^  nor  can  they  purchase  indirectly  by 

1  Holt  1'.  Agnew,  67  Ala.  3GS, 

2  Trevelyan  v.  Charter,  9  Beav.  140;  11  CI.  &  Fin.  714;  Revett  r. 
Harvey,  1  S.  &  S.  50'2;  Hugneiiin  v.  Baseley,  14  Yes.  27;>;  Gray  v.  Mans- 
field, 1  Ves.  379;  Wright  v.  Proud,  13  Ves.  130;  Ahearne  y.  Ilogan,  1 
Dr.  310  ;  Billing  v.  Southee,  9  Hare,  534;  16  Jur.  188;  Crispell  w.  Dubois, 
4  Barb.  393;  Blackie  v.  Clarke,  22  L.  J.  Ch.  377;  Whitehorn  v.  Hines,  1 
Munf.  559;  Shallcross  v.  Oldham,  2  John.  &  H.  609  ;  Dent  r.  Bennett, 
4  M.  &  Cr.  209 ;  Gibson  v.  Russell,  2  Y.  &  C.  N.  R.  104  ;  Pratt  r.  Barker, 
1  Sim.  1;  Swissholm's  App.,  50  Penn.  St.  475;  Falk  v.  Turner,  101  Mass. 
494  ;  Rhodes  v.  Bate,  L.  R.  1  Ch.  252. 

*  Doggett  V.  Lane,  12  ]\Io.  215. 

*  Savage  ?),  Williams,  15  La.  An.  250;  Carter  v.  McManus,  id.  041; 
Dugas  V.  Gilbeau,  id.  581. 

6  Davoue  v.  Fanning,  2  Johns.  Ch.  252  ;  Yan  Epps  v.  Van  Epps,9  Paige, 
237;  Ward  v.  Smith,  3  San.lf.  Ch.  592;  Ames  v.  Browning,  1  Bradf.  .321; 
Rogers  v.  Rogers,  3  Wend.  503;  Bostwick  v.  Atkins,  1  Comst.  53;  Mi- 
choud  V.  Girod,  4  How.  504  ;  Drysdale's  App.  14  Penn.  St.  531 ;  Moody  v. 
Yandyke,  4  Binn.  31;  Beeson  v.  Beeson,  9  Barr,  279;  Winter  r.  Geroe, 
1  Halst.  Ch.  319;  Conway  v.  Green,  1  H.  &  J.  151;  Bailey  v.  Robinson, 

1  Grat.  4;  Hudson  v.  Hudson,  5  j\Iunf.  180;  Baiiies  v.  McGee,  1  Sm.  &  ]\r. 
2i)S;  Baxter  v.  Costin,  1  Busb.  Eq.  2()2;  Breckenridge  v.  Holland.  2  Blackf. 
377  ;  Edmunds  v.  Crenshaw,  1  McCord,  Ch.  252.  But  in  South  Carolina 
an  executor  may  purchase  the  personal  property.     Stallings  r.  Foreman, 

2  Hill  Eq.  401  ;  and  so  in  Alabama,  Julian  v.  Reynolds,  8  Ala.  080;  Pey- 
ton V.  Enos,  16  La.  An.  135;  Yan  AVeckle  j'.  Malla,  id.  325;  Huston  v. 
Cassidy,  2  Beas.  228 ;  IMulford  v.  Winch,  3  Stockt.  10 ;  Culver  v.  Culver, 
id.  215;  Dugas  v.  Gilbeau,  15  La.  An.  581. 

295 


§  205.]  CONSTRUCTIVE   TRUSTS.  [cHAP.    VI. 

procuring  a  third  person  to  purchase  in  the  first  instance, 
and  by  receiving  a  conveyance  from  such  tliird  person.^ 
This  rule  is  so  strict,  that  they  cannot  purchase  any  ot  tho 
assets  of  the  estate  under  their  charge,  although  the  assets 
are  ordered  by  the  court  to  be  sold  at  public  auction  ;2  and 
even  where  a  creditor  seized  a  portion  of  the  estate  and 
exposed  it  to  public  sale,  it  was  held  that  the  executor  or 
administrator  could  not  purchase.^  So  if  an  executor  join 
with  others  in  the  purchase  of  the  estate  the  sale  may  be 
avoided.*  If,  however,  the  estate  is  sold  in  good  faith  to  a 
stranger,  with  no  collusion  between  him  and  the  executor, 
there  is  nothing  to  prevent  the  executor  from  pui'chasing  it 
afterwards  like  any  other  property.^  So  an  executor  may 
purchase  the  interest  of  a  third  person  in  the  estate.^  If 
fraud  is  superadded  to  a  purchase  by  an  executor,  or  any  use 
of  his  situation  is  made  to  make  a  more  favorable  purchase, 
it  will  of  course  be  avoided,  or  he  will  be  ordered  to  account 
for  the  property  and  all  the  profits  received.'^  But  generally 
a  purchase  of  the  assets  of  an  estate  by  an  executor  is  not 
void,  but  only  voidable,  and  such  sale  may  be  confirmed  by 
all  the  parties  interested  in  the  estate;^  and  so  a  long  acqui- 

^  Davoue  v.  Fauning,  2  Johns.  Ch.  252;  Paul  v.  Squibb,  12  Penn.  St. 
29G;  Woodruff  v.  Cook,  2  Edw.  Ch.  259  j  Hawley  v.  Cramer,  4  Cow.  717; 
Beaubien  v.  Poupard,  Harr.  Ch.  206 ;  Buckles  v.  Lafferty,  2  Rob.  292 ; 
Hunt  V.  Bass,  2  Dev.  Eq.  292 ;  Forbes  v.  Ilalsey,  26  N.  Y.  53  ;  Miles  v. 
Wheeler,  43  III.  123;  Kruse  v.  Stephens,  47  111.  112;  Smith  v.  Drake,  23 
N.  J.  Eq.  302 ;  Tiffany  v.  Clark,  1  N.  Y.  Sup.  Ct.  Add.  9. 

2  Walliugton's  Est.,  1  Ashm.  307;  Beeson  v.  Beeson,  9  Barr,  279; 
Rham  v.  North,  2  Yeates,  117;  Jewett  v.  Miller,  10  X.  Y.  402;  Fox  v. 
Mackreth,  1  Lead.  Cas.  Eq.  1;  Colgate  v.  Colgate,  23  X.  J.  Eq.  372;  Col- 
burn  V.  Morton,  1  N.  Y.  Dec.  378;  Farrar  v.  Farley,  3  S.  C.  11. 

3  Spindler  v.  Atkinson,  3  Md.  410;  Fleming  v.  Teran,  12  Ga.  394; 
Wyncoop  v.  AVyncoop,  12  Ind.  206.  But  the  contrary  rule  was  held  in 
Fisk  V.  Sarber,  6  Watts  &  S.  18;  Prevost  v.  Gratz,  1  Pet.  C.  C.  304; 
Campbell  v.  Johnson,  1  Sandf.  Ch.  148 ;  Bank  of  Orleans  v.  Torrey,  7  Hill, 
200. 

4  ]\Iitchum  I'.  Mitchum,  3  Dana,  2G0;  Paul  i-.  Squibb    12  Penn.  St.  296. 
6  Silverthorn  v.  McKinister,  12  Penn.  St.  67. 

*  Alexander  v.  Kennedy,  3  Grat.  379. 

'  Yanhorn  v.  Fonda,  5  Johns.  Ch.  388;  Hudson  v.  Hudson,  5  ]Munf.  180. 

*  Harrington  v.  Brown,  5  Pick.  519;  Bruch  v.  Lantz,  2  Rawle,  392; 

296 


CHAP.   VI.]  PRINCIPAL   AND   AGENT.  [§  206. 

cscence  in  a  purchase  made  by  an  executor,  by  all  the  hciis, 
W()ulJ  1)0  held  to  be  a  confirmation.'  If  an  administrator 
purchases  the  estate  at  his  own  sale,  and  afterwards  conveys 
the  estate  to  a  third  person,  his  vendee  will  be  charged  with 
notice  of  the  defect  of  title,  as  it  would  be  apparent  upon 
the  face  of  the  deed.^  But  if  the  administrator  should  col- 
lusively  convey  to  a  third  person  and  take  back  a  deed  from 
him,  and  then  himself  sell,  the  purchaser  would  not  prob- 
ably be  charged  with  notice  unless  he  had  actual  notice.^ 

§  206.  The  relation  of  principal  and  agent  is  a  fiduciary 
one,  and  the  same  observations  apply  as  to  other  relations  of 
trust  and  confidence,  (a)  Some  have  doubted  Avhcther  it 
would  not  have  been  wiser  to  have  })rohibited  all  contracts 

Pennock's  App.,  14  Penn.  St.  440  ;  Loiigworth  v.  (Jofoith,  Wright,  192  ; 
Dunlap  V.  Mitchell,  10  Ohio,  117;  Williams  v.  Marshall,  4  G.  «fc  J.  o77 ; 
Moore  v.  Ililtou,  12  Leigh,  2  ;  Scott  v.  Freeland,  7  Sin.  &  M.  410;  Ljou 
V.  Lyon,  8  Ired.  Eq.  201. 

^  Jennisoii  v.  Ilapgood,  7  Pick.  1  ;  Hawley  v.  Cramer,  4  Cow.  719  ; 
Ward  V.  Smith,  3  Saiidf.  Ch.  592 ;  Baker  v.  Read,  18  P.eav.  .398  ;  Mussel- 
man  V.  Eshelman,  10  Barr,  394;  Bell  v.  Webb,  2  Gill,  164;  Todd  v.  Moore, 
1  Leigh,  457. 

2  Lazarus  v.  Bryson,  3  Binn.  59  ;  Ward  v.  Smith,  3  Sandf.  592  ;  Smith 
V.  Drake,  23  N.  J.  Eq.  302;  Potter  v.  Pearson,  60  Maine,  220. 

*  Johnson  v.  Bennett,  39  Barb.  237. 

(a)  A  mere  agent  is  not  a  trus-  not  to  attempt  personal  gain  di- 
tee  when  he  does  not  claim  or  pos-  rectly  or  indirectly  by  purchasing 
sess  title.  Brown  r.  Brown,  154  or  dealing  with  his  principal's  jirop- 
Hl.  35;  Stanford  i'.  ]\Iann,  1G7  111.  erty.  Lister  v.  Stubbs,45Ch.  1).  1; 
79;  Comleyi-.  Dazian,114N.Y.  161.  Halsey  v.  Cheney,  68  F.  R.  763; 
The  cashier  of  a  bank  is  not  a  legal  Stevenson  v.  Kyle,  42  W.  Va.  229  ; 
trustee ;  and  he  may  hold  in  his  Tyler  v.  Sanborn,  128  111.  136 ;  Dar- 
own  right  land  bought  with  prop-  lington's  Estate,  147  Penn.  St.  624; 
erly  borrowed  money  of  the  bank.  Luscombe  r.  Grigsby  (S.  D.),  78 
Barth  v.  Koetting,  99  Wis.  242.  An  N.  W.  357.  He  becomes  a  con- 
agent  cannot  constitute  himself  a  structive  tru.stee  when,  in  violation 
trustee  against  his  principal.  Wright  of  his  duty  to  his  principal,  or  by 
0.  Mills,  63  L.  T.  186.  An  agent's  misusing  the  latter's  funds,  he  pur- 
possession  of  securities  for  a  loan  is  chases  real  t>sf  ate  for  himself.  Ibid. ; 
deemed  that  of  his  principal.  Low-  (Jashe  r.  Young  (Oiiio),  •■)8  N.  E.  20; 
ery  r.  Erskine,  113  X.  Y.  52.  He  is  Boswell  r.  Cunningham.  32  Ela.  277; 
under  the  same  duty  as  a  trustee  Lee  c.  Patten,  34  Fla.  1  19;  (irouch 

297 


§  206.] 


CONSTRUCTIVE    TKUSTS. 


[chap.  vr. 


between  parties  sustaining  these  relations  to  each  other,  and 
to  have  thus  taken  away  all  temptation  to  abuse  the  trust, 
V.  Hazlehurst  L.  Co.  (Miss.),  16  So.  the  other  party  has  already  repu- 
496;  Walter  r.  Jones,  107  Ala.  331.  diated  it.  Bolton  v.  Lambert,  41 
Thus,  an  agent,  purchasing  as  such  Ch.  D.  295 ;  37  W.  R.  236,  434 ; 
at  an  auction  sale,  may  be  com-  Long  v.  King  (Ala.),  23  So.  534  ; 
pelled  to  convey  the  purchased  es-  see  Clews  v.  Jamieson,  89  F.  R.  63. 
tate,  if  he  takes  the  title  in  his  own  The  relation  of  a  factor  to  his 

name.     See  Fletcher  v.  Bartlett,  157    principal  may  be  at  the  same  time 


Mass.  113 ;  Roby  v.  Colehour,  135 
111.  300 ;  Collins  v.  Williamson,  94 
Ga.  635;  Hughes  v.  Wilson,  128 
Ind.  491  ;  Chaffiu  v.  Hull,  42  F.  R. 
524;  Lee  v.  Patten,  34  Fla.  149; 
Bourke  v.  Callanan,  160  Mass.  195. 
In  such  cases  the  trust  can  be  en- 
forced by  the  principal's  grantee. 
Milner  v.  Rucker,  112  Ala.  360.    In 


that  of  debtor  and  creditor  and  one 
of  trust.  See  Patapsco  Guano  Co.  v. 
Bryan,  118  N.  C.  576.  See  Leap- 
hart  V.  Commercial  Bank,  45  S.  C. 
563;  Davis  v.  Scovern,  130  Mo.  303; 
Gisborn  v.  Charter  Oak  Life  Ins. 
Co.,  142  U.  S.  326.  When  the  legal 
title  to  the  proceeds  of  consigned 
goods,  deposited  in  a  bank,  is  in  a 


general,  even  a  bona  fide  purchaser    factor,  and  the  principal  is  thereby 
from  any  agent  gets  no  better  title    prevented  from   suing  the  bank  at 


than  the  agent  had  to  personal  prop- 
erty other  than  negotiable  paper  or 
money,  and  the  principal  may  re- 
cover it.  Gilman  Linseed  Oil  Co. 
I'.  Norton,  89  Iowa,  434  ;  Stevenson 
V.  Kyle,  42  W.  Va.  229. 

The  statute  of  frauds  distin- 
guishes between  an  agency  and  a 
trust  or  confidence,  and  an  agent, 
who  buvs  for  himself  with  his  own 


law,  the  latter  may  maintain  a  bill 
in  equity  against  the  bank,  if  it 
receive  the  payment  with  knowl- 
edge that  the  money  belongs  equit- 
ably to  the  factor's  consignor.  Union 
Stock  Yards  Bank  v.  Gillespie,  137 
U.  S.  411,  419. 

When  money  is  placed  in  the 
hands  of  one  person  to  be  delivered 
to   another,    a  trust    arises   in    the 


money,  when  directed  by  his  princi-  latter's  favor,  which  he  may  enforce 

pal  to  buy  for  him,  will  not  be  re-  by  bill  in  equity,  if  not  by  action  at 

quired  to  convey  to  the   principal,  law ;  the  acceptance  of  the  money 

James  v.  Smith,  [1891]  1  Ch.  384,  with  notice  of  its  ultimate  destina- 

388,  sustaining  Bartlett  v.  Picker-  tion  being  sufficient  to  create  a  duty 

gill,  1  Eden,  515 ;  4  East,  577,  n.,  on  the  bailee's  part  to  devote  it  to 

which    was    doubted    in   Heard  v.  the  purposes  intended  by  the  bailor. 


Pilley,  L.  R.  4  Ch.  548.  See 
Browne,  St.  of  Frauds,  §  96 ;  Hal- 
sell  V.  Wise  County  Coal  Co.  (Tex. 
C.    App.),   47    S.   W.    1017.     The 


In  enforcing  such  trust,  a  court  of 
equity  may  make  such  incidental 
orders  as  may  be  necessary  for  the 
proper  protection  and  distribution 


principal  may  also  ratify  his  agent's  of  the  fund.     Keller  v.  Asliford,  133 

authorized   acts,    and  his   right  to  U.  S.  610;  Union  Life  Ins.  Co.  v. 

ratify  and  enforce  the  agent's  con-  Hanford,  143  U.  S.  187;  McKee  u. 

tract  is  not  affected  by  the  fact  that  Lamon,  159  U.  S.  317,  322. 
298 


CHAP.    VI.]  PRINCIPAL   AND   AGENT.  [§  206. 

rather  than  to  investigate  each  case  as  it  arises.*  But  per- 
haps the  entire  freedom  of  trade  and  Ijusincss,  and  tlic  con- 
venience of  society,  demand  that  there  should  be  at  least  the 
possibility  of  dealing  between  persons  bearing  these  rela- 
tions, and  thus  there  is  no  absolute  prohibition.  The  j)rin- 
cipal  may  buy  and  sell  of  the  agent,  and  he  may  make  an 
agent  the  object  of  his  bounty,  but  there  must  be  the  utmost 
good  faith  and  frankness  in  the  dealing.^  The  principal  is 
entitled  to  the  best  skill  and  judgment  of  his  agent  in  the 
conduct  of  his  affairs.  If  at  the  same  time  the  agent  is  at 
liberty  to  purchase  the  property  of  his  principal,  there  would 
be  such  a  conflict  between  his  duty  and  his  interest,  that 
there  could  be  no  safety  in  business.  An  agent,  therefore, 
if  he  purchases  property  of  his  principal,  must  communicate 
fully  and  truly  every  fact  in  relation  to  such  property  within 
his  knowledge;  and  he  must  also  be  known  as  the  purchaser, 
for  if  he  acts  secretly  the  contract  will  certainly  be  held  to 
be  fraudulent;  and  so  if  he  is  employed  to  purchase  for 
another  and  he  jnirchases  for  himself,  he  will  be  held  to  be 
a  trustee.  3  No  person  whose  duty  to  another  is  inconsistent 
with  his  taking  an  absolute  title  to  himself  will  be  per- 
mitted  to   purchase   for  himself.     For  no  one  can  hold  a 

1  Dunbar  v.  Tredennick,2  B.  &  B,  319  ;  Norris  v.  La  Xeve,  3  Atk.  38; 
Fairman  v.  Bavin,  29  111.  75. 

*  Selsey  v.  Rhoades,  2  S.  &  S.  49;   1  Bligh,  1 ;   Kerr  v.  Dungannon, 

1  Dr.  &  W.  509,  541 ;  Hugueuin  v.  Baseley,  14  Yes.  273  ;  Molony  r.  Ker- 
nan,  2  Dr.  &  W.  31 ;  Harris  v.  Tremenlieere,  15  Ves.  40 ;  Wiuchelsea  v. 
Garrety,  1  M.  &  K.  253  ;  Benson  v.  Heatham,  1  Y.  &  C.  Ch.  320 ;  Xeeley 
V.  Anderson,  2  Strob.  Eq.  2G2 ;  Brooke  v.  Berry,  2  Gill,  83;  Peisch  v. 
Quiggle,  57  Penn.  St.  247. 

8  Lees  V.  Nuttall,  1  R.  &  M.  53 ;   Taml.  282 ;  Church  v.  Marine  Ins. 
Co.,  1  Mason,  341 ;  Crowe  r.  Ballard,  3  Bro.  Ch.  120;  Barker  v.  Ins.  Co., 

2  Mason,  309  ;  Massey  v.  Davies,  2  Ves.  Jr.  318;  Woodhouse  r.  Mereditli, 
1  J.  &  W.  204 ;  Purcell  r.  Macnamara,  14  Ves.  91 ;  Wott  r.  (irove,  2  Sch. 
&  Lef.  492  ;  Lowther  v.  Lowther,  13  Ves.  102;  Green  v.  Winter,  1  Johns. 
Ch.  27;  Morret  v.  Paske,  2  Atk.  53;  Coles  v.  Trecothick,  9  Ves.  24G; 
Parkist  v.  Alexander,  1  Johns.  Ch.  394 ;  Gray  v.  Mansfield,  1  Ves.  379 ; 
Belt,  Suppl.  167;  Fox  v.  Mackreth,  2  Bro.  Ch.  400;  2  Cox.  320;  1  Lead. 
Cas.  Eq.  92,  and  notes ;  Dennis  v.  McCoy,  32  111.  429  ;  Safford  v.  Hinds, 
39  Barb.  625 ;  Squire's  App.,  70  Penu.  St.  268. 

299 


§  206.]  CONSTRUCTIVE  TRUSTS.         [CHAP.  VI. 

benefit  acquired  by  fraud  or  a  breach  of  his  duty.^  All  the 
knowledge  of  the  agent  belongs  to  the  principal  for  whom 
he  acts,  and  if  the  agent  use  it  for  his  own  benefit,  he  will 
become  a  trustee  for  his  principal. ^  Whenever  one  person 
is  placed  in  a  relation  to  another,  by  the  act  or  consent  of 
that  other,  or  the  act  of  a  third  person,  or  of  the  law,  so 
that  he  becomes  interested  for  him  or  with  him  in  any  sub- 
ject of  property  or  business,  he  will  in  equity  be  prohibited 
from  acquiring  rights  in  that  subject  antagonistic  to  the 
person  with  whose  interest  he  has  been  associated.^  There- 
fore, whatever  an  agent  may  be  employed  to  do,  he  cannot 
use  his  position  nor  the  knowledge  obtained  by  his  employ- 
ment to  obtain  a  bargain  from  his  principal.  Nor  can  he 
take  advantage  of  his  own  negligence ;  as  where  an  agent 
allowed  his  principal's  property  to  be  sold  for  taxes  and 
bought  it  himself,  he  was  held  as  a  trustee,  although  the 
relation  of  principal  and  agent  had  ceased.^  In  some  cases 
he  may  innocently  purchase  of  his  principal ;  but  if  he  con- 
ceals himself  and  acts  through  another,  either  in  purchas- 
ing from  or  selling  to  his  principal,  he  may  be  held  as  a 
trustee,  or  the  contract  maybe  entirely  avoided;^  or  if  he 

1  Reed  v.  Warner,  5  Paige,  650  ;  Sweet  v.  Jacocks,  6  Paige,  355 ;  Lees 
V.  Nuttall,  1  R.  &  M.  53  ;  Torrey  v.  Bank  of  Orleans,  6  Paige,  650  ;  Green- 
field's Est.,  2  Harris,  489;  Sheriff  v.  Neal,  6  Watts,  534;  Plumer  v.  Reed, 

2  Wright,  46;  Hoge  v.  Hoge,  1  Watts,  163;  Swartz  v.  Swartz,  4  Barr, 
353;  Harrold  v.  Lane,  3  Penn.  St.  268  ;  Jenkins  v.  Eldredge,  3  Story,  181 ; 
Morris  l:  Nixon,  1  How.  118  ;  Seichrist's  App.,  66  Penn.  St.  237;  Squire's 
App.,  70  id.  268. 

2  Gillett  V.  Peppercorne,  3  Beav.  78  ;  Taylor  v.  Salmon,  2  Mee.  &  Comp. 
139;  4  M.  &  C.  139  ;  Voorhees  v.  Church,  8  Barb.  136  ;  Van  Epps  r.  Van 
Epps,  9  Paige,  237 ;  Torrey  v.  Bank,  &c.,  id.  649 ;  Cram  v.  Mitchell,  1  Sandf . 
251 ;  Dobson  v.  Racey,  3  Sandf.  61 ;  Reed  v.  Norris,  2  M.  &  Cr.  361 ;  Ringo 
r.  Binns,  10  Pet.  209 ;  Farnham  v.  Brooks,  9  Pick.  212;  Davis  v.  Hamlin, 
108  111.  39. 

8  Davis  V.  Hamlin,  108  111.  39  ;  Allen  v.  Jackson,  122  HI,  567. 

*  Morris  v.  Joseph,  1  W.  Va.  256. 

6  Winn  V.  Dillon,  27  Miss.  494 ;  Lewis  v.  Ilillman,  3  H.  L.  Cas.  629 ; 
Parkist  v.  Alexander,  1  Johns.  Ch.  394 ;  Sweet  v.  Jacocks,  6  Paige,  364  ; 
Bank  of  Orleans  v.  Torrey,  7  Hill,  200  ;  9  Paige,  053  ;  Myer's  App.,  2-Barr, 
463;   Rankin  r.  Porter,  7  AVatts,  387;    Piatt  v.  Oliver,  2  McLean,  207; 

3  How.  353  ;  Church  v.  Ins.  Co.,  1  Mason,  341 ;  Teakle  v.  Barley,  2  Brock. 

300 


CHAP.    VI.]  rUINCIl'AL    AND    AGENT.  [§  207. 

accepts  any  Ijcncfits  in  condiictiiit;  tlio  Inisincss  of  liis  prin- 
cipal, he  will  hold  them  in  trust  for  him,'  or  if  he  makes 
use  of  his  position  in  any  way  to  obtain  a  title  to  himself.^ 
If  in  matters  within  the  purposes  <jf  his  agency  he  takes  a 
conveyance  in  his  own  name,  he  is  a  trustee  ex  maleficio,^  as 
if  he  buys  a  tax  certificate  for  his  ])rincipal  and  then  takes 
the  deed  in  his  own  name.^  And  where  one  partner  C.  gets 
a  lease  of  the  premises  in  his  father's  name  when  the  other 
partner  D.  had  a  right  to  expect  he  would  secure  a  joint 
lease  for  the  partnership,  C.'s  father  holds  in  trust  not  only 
for  C.  but  for  D.  also.^  So  if  he  buys  for  himself  and  his 
partner  the  land  which  he  was  engaged  to  buy  for  the  plain- 
tiff, and  has  the  deed  made  to  his  partner  and  ]jays  the 
money  from  his  own  funds,  still  a  trust  will  result,  and  the 
payment  will  be  considered  only  as  a  loan,  on  security  of 
the  title. ^  But  where  one  breaks  a  mere  parol  agreement 
to  buy  land  for  another  and  buys  it  himself,  there  is  no 
trust,  but  only  a  breach  of  parol  contract."  The  test  is 
whether  the  act  is  inconsistent  with  duties  resulting  from  a 
relation  of  confidence  between  the  parties.^ 

§  207.  The  directors  of  corporations  are  trustees  and 
agents  of  the  shareholders  and  of  the  corporation,  and  the 
same  rules  arc  applied  to  the  contracts  of  directors  with  the 
corporation,  as  are  applied  to  the  dealings  of  other  parties 

44  ;  Oldham  v.  Jones,  5  B.  Mon.  467 ;  Banks  r.  Judah,  8  Conn.  146  ;  Cope- 
land  V.  Ins.  Co.,  6  Pick.  19S ;  McGregor  v.  Gardner,  14  Iowa,  32G ;  Clark 
V.  Lee,  id.  425. 

1  Bailey  v.  Watkins,  Sug.  Law  of  Prop.  726  ;  Gaskell  v.  Chambers  26 
Beav.  .360. 

2  Smith  c.  Wright,  49  111.  403. 

8  Squire's  App.,  70  Penn.  St.  268;  ]\IcMurry  v.  Mobley,  39  Ark.  313  ; 
Vallette  v.  Tedens,  122  111.  607;  Byington  v.  Moore,  62  Iowa,  470;  Kraemer 
I'.  Duestermann,  .37  Minn.  469. 

*  Collins  V.  Raincy,  42  Ark.  531. 

^  dishing  V.  Daiiforth,  76  Maine,  114. 

6  Bryan  v.  McNanghton,  38  Kans.  98. 

'  Hackney  v.  Butts,  41  Ark.  394.     See  §  134. 

8  Farley  c.  Kittson,  27  Minn.  102,  at  105. 

301 


§  207.]  CONSTKUCTIVE   TKUSTS.  [CHAP.  IV. 

holding  a  fiduciary  relation  to  each  other.'  (a)  The  direc- 
tors are  intrusted  with  the  management  of  the  property  of 
the  corporation  for  the  best  interests  of  all  the  members,  and 
the  directors  are  bound  to  execute  their  trust;  nor  must  they 
allow  their  private  interests  to  interfere  with  the  duties  of 
the  trust  that  they  have  assumed,  nor  assume  a  position 
tending  to  produce  a  conflict  between  their  private  interests 
and  the  discharge  of  their  fiduciary  duties. ^     It  is  said  that 

1  Gaskell  v.  Chambers,  26  Beav.  360;  Great  Luxembourg  R.  Co.  v. 
Magnay,  586;  Ex  parte  Bennett,  18  Beav.  339;  Cumberland  Coal  Co.  v. 
Hoffman  Steam  Coal  Co.,  18  Md.  456;  Cumberland  Coal  Co.  v.  Sherman, 
30  Barb.  553;  25  Md.  117  ;  Aberdeen  R.  Co.  v.  Blaikie,  1  McQueen,  461, 
Michoud  V.  Girod,  4  How.  544;  Hodges  v.  New.  Eng.  Screw  Co.,  1  R.  I. 
321 ;  York  &  North  Midland  R.  Co.  v.  Hudson,  16  Beav.  485;  19  Eng.  L. 
&  Eq.  365;  Benson  v.  Heathorne,  6  Y.  &  C.  C.  C.  326;  Verplanck  v.  Ins. 
Co.,  1  Edw.  Ch.  84  ;  Percy  v.  Milladon,  3  La.  568 ;  Robinson  v.  Smith,  3 
Paige,  222;  IVIurray  v.  Vanderbilt,  39  Barb.  237;  Flint,  &c.  R.  R.  Co.  v. 
Dewey,  14  Mich.  477 ;  European  &  N.  Am.  Railw.  Co.  v.  Poor,  59  Maine, 
277  ;  Scott  v.  Depeyster,  1  Edw.  Ch.  513 ;  Butts  v.  Wood,  38  Barb.  188  ; 
Ashurst's  App.,  60  Pa.  St.  290;  Drury  v.  Cross,  7  Wall.  299;  Sawyer  v. 
Hoag,  17  Wall.  610 ;  Land  Credit  Co.  v.  Fermoy,  L.  R.  8  Eq.  12  ;  Bank 
Com'rs  V.  Bank  of  Buffalo,  6  Paige,  503. 

2  It  is  a  breach  of  trust  for  railroad  directors  to  assume  inconsistent 
obligations  by  becoming  members  of  a  company  with  whom  they  have 
made  a  contract  to  build  and  equip  their  road ;  and  in  such  case  no  ques- 
tion will  be  allowed  to  be  raised  as  to  the  fairness  of  the  transaction,  and 

(a)  Promoters  of  a  corporation  purchase  a  site  for   its  plant  with 

cannot  rightfully  gain  any  advan-  money  to  be  treated  as  a  payment 

tage  over  other   members  and   are  on  his  subscription  to  its  stock,  and 

liable  for  profits  received  by  them  after   making   such    payment,    and 

in  violating  their  duty.     In  re  North  secretly  taking  the  deed  in  his  own 

Australian    Territory    Co.,    [1892]  name,  constructed   the   plant   with 

1  Ch.    322;    In    re   Postage   Stamp  corporate  funds,  leading  the  other 

Automatic  Delivery  Co.,  [1892]  3  Ch.  members  to  suppose  that  the  cor- 

566 ;    Fountain    Spring  Park  Co.  v.  poration   owned   the   land,  he  was 

Roberts,  92  Wis.  345,  347;  Scadden  held   to   be   a  constructive  trustee 

Flat  Co.  V.  Scadden,  121  Cal.  33;  see  ex  maleficio  of  the  land  for  the  cor- 

Yale  Gas   Stove  Co.  v.  Wilcox,  64  poration's  benefit.     Nester  v.  Gross, 

Conn.   101;  35  Am.  L.,  Reg.  n.  s.  66  Minn.  371.     See  Palmetto  L.  Co. 

713.     Where  a  person  who  was  pro-  v.  Risley,  25  S.    C.  309;  Halsell  r. 

moter  and  president  of  a  corporation  Wise  County  Coal   Co.  (Texas),  47 

agreed  with  the  other  members  to  S.  W.  1017;  supra,  §  178,  n.  (a). 
302 


CHAP.   VI.]  PRINCIPAL   AND   AGENT.  [§  207. 

the  contracts  of  trustees  are  of  two  classes.  One  class  con- 
sists of  contracts  made  by  trustees  with  themselves,  or  with 
a  board  of  trustees  or  directors  of  which  they  are  members. 
These  contracts  are  void  from  the  fact  that  no  man  can 
contract  with  himself.  If,  therefore,  a  board  of  directors 
should  convey  all  the  property  of  a  corporation  to  them- 
selves, the  conveyance  would  be  void,  without  any  inquiry 
into  its  fairness,  or  whether  it  was  beneficial  to  the  corpora- 
tion or  not.  And  the  same  rule  applies  if  a  board  of  direc- 
tors convey  the  property  of  a  corporation,  or  any  part  of  it, 
to  one  of  their  number,  he  being  one  of  the  trustees  nego- 
tiating a  contract  with  himself.*  And  the  same  rule  was 
applied  where  the  trustees  of  one  corporation,  being  the 
trustees  of  another  corporation,  conveyed  the  property  of  the 
one  corporation  to  another,  although  there  was  a  decree  of 
court. 2  The  other  class  of  contracts  is  where  a  trustee 
contracts  with  the  cestui  que  trust,  or  a  third  person.  These 
contracts  are  not  void ;  as  where  a  director  makes  a  pur- 
chase of  property  from  the  corporation  itself,  acting  inde- 
pendently of  its  directors,  the  contract  is  not  void ;  but  the 
same  rules  apply,  that  apply  to  other  trustees  purchasing  of 
the  cestui  que  trust :  the  burden  is  upon  the  trustee  to  vindi- 
cate the  transaction  from  all  suspicion.^     And  so  all  advan- 

no  injury  to  the  ccxtui  que  trust  need  be  proved.  Oilman  C.  &  S.  R.  R. 
Co.  V.  Kelly,  77  111.  426.  But  where  stockholders  sanction  a  contract 
under  which  directors  loan  money  to  the  corporation,  and  its  bonds 
secured  by  mortgage  are  given,  if  the  money  is  properly  applied,  the  cor- 
poration is  estopped  from  setting  up  that  the  bonds  and  mortgage  are 
void  by  reason  of  the  trust  relations  which  directors  sustain  to  it.  Hotel 
Co.  V.  Wade,  97  U.  S.  75.  A  director  who  receives  paid-up  shares  from 
the  promoters  of  the  corporation  for  acting  as  director  will  hold  as 
trustee,  and  may  be  required  to  pay  the  highest  value  of  the  shares  at 
the  election  of  the  company.  Xant-y-Glo  &  Blaina  Iron  Works  Co.  v. 
Grave,  L.  R.  12  Ch.  73S. 

^  Cumberland  Coal  Co.  v.  Sherman,  30  Barb.  503 ;  Ogden  v.  Murray, 
39  N.  Y.  202  ;  Bliss  v.  Matteson,  45  N.  Y.  22 ,  Buffalo,  &c.  R.  R.  Co.  p. 
Lampson,  47  Barb.  533 ;  Imperial  Mer.  Cred.  Ass'n  v.  Coleman,  L.  R.  6 
Ch.  505. 

2  St.  Jamos  Church  v.  Church  of  the  Redeemer,  45  Barb.  356. 

8  Ibid.;  Beeson  v.  Beeson,  9  Penn.  St.  2S0. 

303 


§  208.]  CONSTEUCTIVE    TRUSTS.  [cHAP.    VI. 

tages,  all  purchases,  all  sales,  and  all  sums  of  money 
received  by  directors  in  dealing  with  the  property  of  the 
corporation,  are  made  and  received  by  them  as  trustees  of 
the  corporation,  and  they  must  account  for  all  such  moneys, 
or  advantages  received  by  them  by  reason  of  their  position 
as  trustees.^ 

§  208.  Again,  if  the  parents,  relations,  agents,  or  friends 
of  young  persons  hold  out  inducements  of  marriage  by  repre- 
senting the  amount  of  property  that  will  come  to  one  or  the 
other  of  the  parties;  or  if  they  hold  out  pecuniary  considera- 
tions to  induce  the  marriage,  and  if  the  marriage  and  a 
marriage  settlement  take  place  upon  the  faith  of  such  repre- 
sentations and  inducements,  the  persons  making  them  will 
be  bound  to  make  them  good :  if  the  persons  making  the 
representations  and  holding  out  the  inducements  have  the 
property  referred  to  in  their  hands  or  under  their  control,  a 
court  of  equity  will  construe  them  into  trustees  of  such 
property  for  the  parties  to  whom  the  inducements  were  held 
out;  and  the  court  will  compel  them  to  execute  the  trust  by 
making  good  the  representations  or  inducements,  if  they  are 
of  such  a  character  that  a  party  entering  into  a  marriage 
might  reasonably  have  relied  upon  them.^  If,  however,  a 
person  states  his  intention  to  confer  property  upon  one  of  the 
parties  to  a  marriage,  as  that  he  has  made  his  will  giving  a 
certain  estate  to  one  of  the  parties,  and  that  he  does  not  know 
any  reason,  or  have  any  intention  of  altering  it,  but  at  the 
same  time  refuses  to  make  any  contract  or  agreement,  or  to 
be  bound  in  any  way  not  to  alter  his  will,  equity  will  not 
compel  the  execution  of  such  a  representation  or  intention ; 

1  Gaskell  v.  Chambers,  26  Beav.  360;  Bowers  v.  City  of  Toronto,  11 
iMoore,  P.  C.  Cas.  463 ;  Ex  parte  Hill,  32  L.  J.  Ch.  154. 

2  Hamersley  v.  De  Biel,  12  CI.  &  Fin.  45  ;  Downes  v.  Jennings,  32 
Beav.  290;  Hunt  v.  Mathews,  1  Vern.  408;  Walford  v.  Gray,  11  Jur. 
(x.  8.)  106,  403  ;  Jordan  v.  Money,  5  H.  L.  Cas.  185 ;  8  Jur.  (n.s.)  281  ; 
Caton  t'.  Caton,  L.  R.  2  H.  L.  127  ;  Coverdale  v.  Eastwood,  L.  R.  15 
Eq.  122 ;  Saunders  r.  Cramer,  3  Dr.  &  War.  87 ;  Moorhouse  v.  Calvin, 
15  Beav.  341;  Laver  v.  Fielder,  32  Beav.  1;  1  Story's  Eq.  Jur.  §§  268- 
272. 

304 


CHAP.  VI.]        TRUSTEES  OF  CORPORATIONS.         [§  209. 

and  the  estate  named  cannot  be  affected  by  a  constructive 
trust  in  favor  of  tbe  ])arty  to  the  marriage,  in  case  the  will 
is  afterwards  altered,  and  tbe  estate  is  given  to  some  other 
person.  * 

§  209.  These  rules  apply  to  every  kind  of  fiduciary  rela- 
tion. The  principle  is  the  same  in  all  of  them.  Assignees 
of  bankrujjt  or  insolvent  estates  are  subject  to  the  same 
rules,  whether  they  arc  aj)pointcd  by  courts  and  by  ojteration 
of  law,  or  by  voluntary  assignments,  or  by  deeds  of  trust  for 
creditors.^  So  the  solicitors  of  a  bankrupt  cannot  purchase 
his  property.  Committees  or  guardians  of  a  lunatic  cannot 
obtain  the  ownership  of  the  property,^  nor  can  the  directors, 
trustees,  or  governors  of  a  charity  so  deal  with  the  funds  of 
the  charity,  or  take  leases  of  the  charity  lands,  as  to  make  a 
profit  to  themselves.*  And  so  of  partners  and  joint  contrac- 
tors, or  purchasers  and  receivers.  In  all  these  cases  the 
fiduciary  must  account  for  all  the  trust  property  that  comes 
to  his  hands,  whether  by  purchase  or  otherwise,  and  for  all 
profits  which  may  come  to  him  by  dealing  with  such  prop- 
erty, and  even  for  all  bonuses  or  gratuities  given  to  him  by 
strangers  for  contracts  made  with  them  in  relation  to  the 
trust  property.^     For  example,  a  bank  officer  cannot  make  a 

1  Maunsell  r.  Hedges,  4  II.  L.  Cas.  10.39 ;  1  Lead.  Cas.  Eq.  782  ;  Kay 
V.  Crook,  3  Sm.  &  Gif.  407;  Stroughill  v.  Gulliver,  2  Jur.  (x.  s.)  700; 
Randall  v.  ^Morgan,  12  Yes.  67 ;  De  Biel  v.  Thompson,  3  Beav.  469,  475  ; 
1  Jon.  &  La.  539,  569. 

2  Ex  parte  Hughes,  6  Ves.  617  ;  IMorse  v.  Royal,  12  Ves.  372 ;  Ex  parte 
Morgan,  id.  6;  Ex  parte  Lacey,  6  Ves.  625;  Ex  parte  Reynolds,  5  Ves. 
705;  Ex  parte  Bennett,  10  Ves.  381;  Campbell  v.  McLain,  23  Leg.  Intel. 
26,  Phila. ;  Fisk  v.  Sarber,  6  W.  &  S.  18  ;  Beeson  v.  Beeson,  9  Barr,  284 ; 
Dorsey  v.  Dorsey,  3  H.  &  J.  410 ;  Chapin  v.  Weed,  1  Clark,  264 ;  Salt- 
marsh  V.  Beene,  4  Porter,  283;  Harrison  v.  Mocks,  10  Ala.  185;  Wade  v. 
Harper,  3  Yerg.  383. 

8  Wright  y.  Proud.  13  Ves.  136;  Campbell  u.  McLain,  51  Penn.  St. 
200. 

*  Att.  Gen.  v.  Clarendon,  17  Ves.  500. 

6  Bailey  v.  Watkins,  Sag.  Law  of  Prop.  726;  Parshall's  App.,  65  Penn. 
St.  233;  Swissholm's  App.,  56  id.  475;  King  v.  Wise,  43  Cal.  628; 
Carr  v.  Ilouser,  46  Ga.  477. 

VOL.  I.  — 20  305 


§  210.]  CONSTRUCTIVE    TRUSTS.  [CHAP.   VI. 

profit  for  himself  by  loaning  the  bank's  money,  but  will  have 
to  bear  all  losses  arising  from  the  attempt.^  Whenever  two 
persons  stand  in  such  relation  that  confidence  is  necessarily 
reposed  by  one,  and  the  influence  growing  out  of  that  fact  is 
possessed  by  the  other,  and  this  confidence  is  abused  or  the 
influence  is  exerted  to  obtain  an  advantage  at  the  expense  of 
the  confiding  party,  the  party  so  availing  himself  of  his 
position  will  not  be  permitted  to  retain  the  advantage. ^ 
Trustees  cannot  use  their  relations  to  the  trust  property  for 
their  personal  advantage.^ 

§  210.  But  equity  goes  even  further  than  this.  It  not  only 
watches  over  these  defined  relations  of  parties,  but  it  scruti- 
nizes the  undefined  relations  of  friendly  habits  of  inter- 
course, personal  reliance,  and  confidential  advice."*  It  is 
well  known  that  habits  of  kindness,  confidence,  and  trust 
grow  between  neighbors  and  friends;  and  if  advantage  is 
taken  of  such  relations  to  obtain  an  unfair  bargain,  equity 
will  set  it  aside  or  convert  the  offending  party  into  a  trustee.^ 
Of  course  no  rules  can  be  laid  down  by  which  to  judge  all 
such  cases ;  for  every  case  must  of  necessity  depend  upon  its 
own  facts.  ^  Nor  will  a  gift  or  sale  be  set  aside  merely  be- 
cause it  is  to  a  confidential  friend  or  adviser,  even  though  it 
is  made  by  an  old  and  infirm  person,  or  by  one  of  weak  mind ; 
but  if  there  is  any  proof  of  any  superadded  concealment,  mis- 
representation, or  contrivance,  or  any  art  by  which  the  party 
was  thrown  off  his  guard,  or  unduly  influenced  by  his  trust 
and  confidence  in,  or  partiality  for  a  supposed  friend,  equity 
will  interpose  and  correct  the  wrong.  ^     Dealings  of  ship- 

1  Oakland  Bank  of  Savings  v.  Wilcox,  60  Cal.  126.  See  also  Bowling 
V.  Feeley,  72  Ga.  557. 

2  Bohm  V.  Bohm,  9  Col.  100. 

3  Ellicott  V.  Chamberlin,  38  N.  J.  Eq.  604. 

4  Hunter  v.  Atkins,  3  M.  &  K.  140 ;  James  v.  Holmes,  8  Jur.  (n.  s.) 
553,  732;  Falk  v.  Turner,  101  Mass.  194. 

5  Ibid.;  Dent  r.  Bennett,  4  M.  &  Cr.  277;  Smith  v.  Kay,  7  H.  L.  Cas. 
750. 

«  Hunter  v.  Atkins,  3  M.  &  K.  140. 

7  Dent  V.  Bennett,  7  Sim.  539  ;  4  M.  &  C  269;  Huguenin  v.  Baseley, 
306 


CHAP.    VI.]  FRAUDS    OF   THIRD    PERSONS.  [§  211. 

owners  with  their  masters.*  of  parishioners  with  their  clergy- 
men,2  of  medical  advisers  with  their  patients,'^  of  friends 
and  neighbors  who  by  their  situation  and  habits  of  inter- 
course have  obtained  the  confidence  of  each  other,^  and  of  a 
man  and  woman  living  together  as  husband  and  wife,^  come 
within  this  rule.  And  so  the  relation  of  landlord  and  tenant, 
partner  and  partner,  principal  and  surety,  and  tenants  in 
common  may  create  such  influences  of  trust  and  confidence 
that  courts  of  equity  will  construe  a  trust  to  arise  out  of 
their  contracts,  or  will  decree  such  contracts  to  be  set  aside.*' 

§  211.  So  property  obtained  by  one  through  the  fraudulent 
practices  of  a  third  person  will  be  held  under  a  constructive 
trust  for  the  person  defrauded,  though  the  person  receiving 
the  benefit  is  innocent  of  collusion.  If  such  person  accepts 
the  property,  he  adopts  the  means  by  which  it  was  procured ; 
or,  as  Lord  Ch.  Justice  Wilmot  said,  "Let  the  hand  receiv- 
ing the  gift  be  ever  so  chaste,  yet  if  it  comes  through  a 
polluted  channel,  the  obligation  of  restitution  will  follow 
it.  "'^     This  principle  of  course  cannot  prevail  against  a  pur- 

U  Ves.  273;  Gibson  r.  Russell,  2  N.  C.  C  lOi;  Griffiths  i-.  Kobins,  3 
Madd.  191  ;  Popham  ii.  Brooke,  5  Russ.  8;  Maul  v.  Reder,  51  Penn.  St. 
377;  Lengenfitter  r.  Ritching,  58  Penn.  St.  487. 

1  Shallcross  v.  Oldham,  2  John.  &  H.  609. 

2  Greenfield's  Estate,  24  Penn.  St.  232 ;  Scott  v.  Thompson,  21  Iowa, 
599. 

8  Pratt  V.  Barker,  1  Sim.  1 ;  4  Russ.  507 ;  Crisspell  v.  Dubois,  4  Barb. 
393 ;  Billing  i\  Southee,  10  Eng.  L.  &  Eq.  37. 

*  Hunter  v.  Atkins,  3  M.  &  K.  113;  Greenfield's  Estate,  14  Penn.  St. 
489  ;  Cooke  v.  Lamotte,  15  Beav.  234;  Smith  v.  Kay,  7  II.  L.  Cas.  750. 

B  James  v.  Holmes,  8  Jur.  (n.  s.)  553,  732;  4  I)e  G.,  F.  &  J.  470. 

6  INIaddeford  v.  Austwick,  1  Sim.  89;  Farnham  v.  Brooks,  9  Pick.  212; 
Oliver  v.  Court,  8  Price,  127;  Griffiths  v.  Robins,  3  IMadd.  191;  People  v. 
Jansen,  7  Johns.  332  ;  2  Johns.  554  ;  Dawson  v.  Lawes,  Kay,  280;  Camp- 
bell V.  Moulton,  30  Vt.  667;  Boultbee  r.  Stubbs,  18  Ves.  23;  Ex  parte 
Rushforth,  10  Ves.  409;  Hayes  v.  Ward,  4  Johns.  Ch.  123 ;  Mayhew  r. 
Crickett,  2  Swanst.  186;  Keller  v.  Auble,  58  Penn.  St.  412  ;  Duff  v.  Wil- 
son, 72  id.  442;  Mandeville  v.  Solomon,  33  Cal.  38. 

'  Bridgman  v.  Green,  2  Ves.  627;  Wilm.  58,  64;  Luttrell  r.  Olmius, 
cited  11  Ves.  638;  14  Ves.  290;  Huguenin  r.  Baselej-,  id.  289;  Graves  r. 
Spier,  58  Barb.  349  ;  Newton  v.  Porter,  5  Laus.  417.  But  see  Dixon  v. 
Caldwell,  15  Ohio,  412. 

307 


§  212.]  CONSTRUCTIVE   TRUSTS.  [CHAP.   VI. 

chaser  in  good  faith  for  a  valuable  consideration,  and  with- 
out notice  of  any  fraudulent  influence. 

§  212.  So  a  contract  intended  to  defraud  third  persons, 
who  are  not  parties  to  it,  will  be  set  aside,  or  a  trust  will  be 
declared  for  such  third  persons.^  Thus,  if  property  is  con- 
veyed by  a  debtor  for  the  purpose  of  defrauding  his  creditors, 
the  conveyance  is  void  at  law,  and  in  some  cases  equity  will 
construe  it  to  create  a  trust  for  the  creditors. ^  And  so  if  in 
an  arrangement  and  composition  of  creditors  with  the  debtor, 
one  of  them  secretly  obtains  an  extra  advantage  for  execut- 
ing the  composition  deed,  he  will  be  converted  into  a  trustee 
by  reason  of  the  fraud,  and  the  agreement  will  be  null  and 
void.^  Again,  a  transfer  in  fraud  of  a  wife,  it  being  intended 
to  prevent  her  from  obtaining  alimony,  might  raise  a  con- 
structive trust  in  favor  of  the  wife.*  In  this  connection  it 
must  be  noted  that  on  the  same  facts  there  is  a  decided 
difference  as  to  the  manner  in  which  equity  will  treat  per- 
sons standing  in  differing  relations  to  those  facts.  In  favor 
of  the  person  defrauded  a  trust  will  be  raised  by  law,  but  in 
favor  of  the  fraudulent  grantor  none ;  although  if  there  is  an 
express  trust  in  favor  of  the  grantor,  the  trustee  will  not  be 
excused  from  performance  by  showing  that  the  transaction 
was  a  fraud  on  some  third  person.^  (a) 

1  See  §  171. 

2  Loomis  V.  Lift,  16  Barb.  543;  Jones  v.  Reeder,  22  Ind.  111.  See  1 
Story's  Eq.  Jur.  §§  350-381;  Buck  v.  Voreis,  89  Ind.  116. 

8  Chesterfield  v.  Janssen,  2  Ves.  156 ;  15  Ves.  52;  Mann  i\  Darlington, 
15  Penn.  St.  310  ;  Case  v.  Gerrish,  15  Pick.  50;  Ramsdell  v.  Edgarton,  8 
Met.  227;  Lothrop  y.  King,  8  Cash.  382;  Partridge  v.  Messer,  14  Gray, 
180;  Kahn  v.  Gunherts,  9  Ind.  430;  Spooner  r.  Whiston,  8  Moore,  580; 
Mallalieu  v.  Hodgson,  16  Ad.  &  El.  N.  R.  689-715;  Turner  v.  Hoole, 
Dowl.  &  Ry.  N.  P.  27;  Smith  v.  Cuff,  6  M.  &  S.  100  ;  Horton  v.  Riley, 
11  M.  &  W.  492;  Alsager  v.  Spalding,  6  Scott,  204 ;  Arnold,  181;  4  Bing. 
N.  C.  407;  Leicester  v.  Rose,  4  East,  380;  Howden  v.  Haight,  11  Ad.  & 
El.  1038 ;  Fawcett  v.  Gee,  3  Anst.  910 ;  Breck  v.  Cole,  4  Sandf.  83 ; 
Knight  V.  Hunt,  5  Bing.  433;  Bliss  v.  Matteson,  45  N.  Y.  24. 

4  Tyler  r.  Tyler,  25  Brad.  111.  333. 

5  Ibid.;  Fast  v.  McPherson,  98  111.  496. 

(a)  A  resulting  trust  does   not    the     original     transaction     to     be 
arise    when    the    parties    intended    fraudulent,  as  in  the  case  of  a  con- 
308 


CHAP.   VI.]  CONVEYANCE   BEFORE   MARRIAGE.  [§  213, 

§  213.  If  a  man  or  woman  on  the  point  of  marriage  pri- 
vately convey  away  his  or  her  property  for  the  purpose  of 
depriving  the  intended  husband  or  wife  of  the  legal  rights 
and  benefits  arising  from  such  marriage,  equity  will  avoid 
such  conveyance  or  compel  the  person  taking  it  to  hold  the 
property  in  trust,  or  subject  to  the  rights  of  the  defrauded 
husband  or  wife.'  (a)  But  such  conveyance  is  not  void  at 
law  unless  there  is  an  actual  fraud. ^  Nor  will  such  convey- 
ance be  avoided,  if  made  for  a  good  consideration;^  or  for  a 

^  Hunt  V.  Mathews,  1  Vern.  408;  England  v.  Downes,  2  Beav.  522; 
Ball  V.  Montgomery,  2  Ves.  Jr.  191 ;  Strathmore  v.  Bowes,  2  Bro.  Ch. 
345;  2  Cox,  485 ;  1  Ves.  Jr.  22  ;  Goddard  v.  Snow,  1  Russ.  485 ;  Tucker 
V.  Andrews,  13  Maine,  124 ;  Waller  v.  Arniistead,  2  Leigh,  11 ;  Logan  v. 
Simmons,  3  Ired.  Eq.  487 ;  Terry  v.  Hopkins,  1  Hill,  Eq.  1 ;  Duncan's 
App.,  43  Pa.  St.  68;  "Wrigley  v.  Swainson,  3  Ue  G.  &  Sm.458;  Manes  v. 
Durant,  2  Rich.  Eq.  404;  McAfee  v.  Ferguson,  9  Mon.  495;  Linker  v. 
Smith,  4  Wash.  224;  Ramsay  v.  Joyce,  1  McMull.  Eq.  237;  Williams 
V.  Carle,  2  Stockt.  Ch.  543 ;  Lewellin  v.  Cobbald,  1  Sm.  &  Gif .  370 ; 
Cheshire  v.  Payne,  16  B.  Mon.  618;  Carleton  v.  Dorset,  2  Vern.  17;  2 
Cox,  63  ;  McDonnell  i\  Hesilridge,  16  Beav.  340  ;  Howard  v.  Hooker,  2 
Ch.  R.  81 ;  St.  George  v.  Wake,  1  M.  &  K.  622 ;  Taylor  v.  Pugh,  1  Hare, 
608;  Ashton  v.  McDougall,  5  Beav.  56;  Griggs  v.  Staples,  2  De  G.  &  Sm. 
572;  Smith  v.  Smith,  2  Halst.  Ch.  515;  Petty  v.  Petty,  4  B.  Mon.  215; 
Belt  V.  Ferguson,  3  Grant,  289. 

2  Richards  v.  Lewis,  11  C.  B.  1035;  Logan  v.  Simmons,  1  Dev.  &  Bat. 
Law,  13. 

><  De  Mauville  v.  Crompton,  1  V.  &  B.  354 ;  England  v.  Downes,  2 
Beav.  522;  Smith  v.  Smith,  2  Halst.  Ch.  515;  Tucker  v.  Andrews,  13 
Me.  124;  Manes  v.  Durant,  2  Rich.  Eq.  404;  Terry  v.  Hopkins,  1  Hill, 

veyance  to  defraud  creditors ;  such  a  confidential  adviser,  like  an  at- 

conveyance  is  void  as  to  them,  but  torney  at  law,  such   an   agreement 

binding  upon  the  grantor.     Gilbert  will  be  set  aside  and  the  propeity 

V.  Stockman,  81  Wis.    602;    Heinz  conveyed  to  defraud   creditors  will 

V.  White,  105  Ala.  670 ;  Barber  r.  be  restored  to  the  client.     DeCham- 

Barber,    146    Ind.    390  ;  Springfield  brun  v.  Schermorhorn,  59  F.  R.  504. 
H.    Ass'n    V.   Roll,    137    111.    205;  (a)    See   supra,    §    122,   n.    (o). 

Moore  v.  Horsley,  156  111.  36  ;  PoUey  It  is  the  husband's  duty  to  have  a 

I'.  Johnson,  52  Kansas,  478  ;    In  re  provision  in  his  favor,  in  a  marriage 

Camp,  10  N.  Y.  S.  141;  Brown  r.  settlement,  explained  to  the  wife  in 

Brown,    06  Conn.   493  ;    Snider   c.  the  clearest  terms,  and  with  due  ojv 

Udell  W.  Co.,  74  Miss.  353;  Sell  v.  portunity  for  deliberation.    Lovesy 

West,  125  Mo.  621.    But,  as  against  v.  Smith,  15  Ch.  D.  055. 

309 


§  213.1  CONSTRUCTIVE   TRUSTS.  [CHAP.   VI. 

valuable  consideration ;  ^  or  with  the  knowledge  or  concur- 
rence of  the  other  party,  although  an  infant ;  ^  and  the  party 
alleging  fraud  must  prove  it  to  the  satisfaction  of  the  court. '^ 
For  the  same  reasons  a  conveyance  by  a  husband  during  the 
pendency  of  a  divorce  suit  on  the  part  of  his  wife,  in  order 
to  avoid  the  payment  of  alimony,  will  be  held  to  be  fraudu- 
lent and  void.*  If  an  intended  husband  has  no  knowledge  of 
the  particular  property  conveyed,  and  the  negotiations  for 
the  marriage  have  no  reference  to  that  particular  property, 
its  conveyance  is  not  fraudulent,  unless  it  was  actually  in- 
tended as  a  fraud  upon  him,^  and  so  there  must  be  an  intent 
to  defraud  the  individual  who  is  afterwards  married;  for  if  a 
deed  is  made  to  defraud  another  individual  who  is  not  mar- 
ried, but  a  marriage  afterwards  takes  place  with  a  person, 
not  in  contemplation  at  the  time,  there  is  no  fraud. ^  If  no 
notice  of  the  conveyance  is  shown  to  have  been  given,  it  will 
be  presumed  that  no  notice  was  had;'^  and  it  is  always  a 
question  of  fact  upon  the  whole  transaction  whether  the  con- 
veyance is  fraudulent.^     If,  however,  the  property  is  of  that 

Eq.  1  ;  Hunt  v.  Mathews,  1  Vern.  408;  King  v.  Cotton,  2  P.  Wms.  674; 
Mos.  259. 

1  Blanchet  v.  Foster,  2  Ves.  264.  But  if  the  consideration  is  fraudu- 
lently stated  in  the  deed,  it  will  make  the  conveyance  fraudulent.  Lewel- 
lin  V.  Cobbald,  1  Sm.  &  Gif.  376. 

2  St.  George  v.  Wake,  1  M.  &  K.  610;  McClure  v.  Miller,  1  Bail.  Eq. 
108 ;  Knottman  v.  Peyton,  1  Speer's  Eq.  46 ;  Terry  v.  Hopkins,  1  Hill,  Eq. 
1;  Cheshire  v.  Payne,  16  B.  Mon.  618  j  Fletcher  v.  Ashley,  6  Grat.  332; 
Slocombe  v.  Glubb,  2  Bro   Ch.  545. 

8  St  George  v.  Wake,  1  M.  &  K.  610;  England  v.  Downes,  2  Beav. 
522. 

4  Blenkinsop  v.  Blenkinsop,  1  De  G.,  M.  &  G.  495;  Krupp  v.  Scholl, 
10  Penn.  St.  193. 

s  Thomas  v.  Williams,  Mos.  177;  DeManville  v.  Crompton,  1  V.  &  B. 
354 ;  St.  George  v.  Wake,  1  M.  &.  K.  622  ;  and  see  Goddard  v.  Snow,  1 
Russ.  485. 

6  Strathmore  v.  Bowes,  1  Ves.  Jr.  22 ;  2  Bro.  Ch.  345 ;  2  Cox,  28  ;  6 
Bro.  P.  C.  427;  1  Lead.  Gas.  Eq.  325;  England  v.  Downes,  2  Beav.  522  ; 
Cheshire  v.  Payne,  16  B.  Mon.  618  ;  Wilson  v.  Daniel,  13  B.  Mon.  351. 

'  Cole  y.  O'Neill,  3  Md.  174 ;  Wrigley  v.  Swainson,  3  De  G.  &  Sm. 
458. 

8  Ibid. 
310 


CHAP.    VI.]  ILLEGAL   AND   IMMORAL   CONTRACTS.  [§  214 

character  that  the  husband  could  obtain  no  right  over  it  liy 
tlie  marriage,  the  conveyance  of  it  l>y  the  wife  before  mar- 
riage cannot  be  set  aside. '  In  all  autc-nuptial  contracts  there 
must  be  the  utnjost  g(Jod  faith  between  the  jjarties,  and  a 
grossly  disproportionate  settlement  may  be  evidence  of  a 
fraudulent  concealment.  ^ 

§  214.  There  are  certain  purposes  for  which  neither  express 
law  nor  public  policy  will  allow  parties  to  contract;  thus, 
the  law  will  not  permit  contracts  for  the  procuring  of  mar> 
riagcs,'^  or  of  public  ofiiccs,^  or  of  legislation,^  or  of  illicit 
cohabitation.^  If,  therefore,  such  contracts  arc  entered  into, 
equity  will  enjoin  their  performance."  And  the  party  creat- 
ing the  interest,  although  in  pari  delicto^  may  api)ly  for  an 
injunction.  In  such  cases,  the  person  applying  must  return 
any  benefit  that  he  may  have  received.^  Such  contracts  are 
equally  void  at  law,  and  if  the  parties  are  in  pari  delicto^  the 
law  will  leave  them  where  it  finds  them.     If  one  party  has 

^  Ibid.  Whether  the  deed  on  record  is  notice  or  not,  is  a  question. 
Cole  V.  O'Xeill,  3  Md.  174. 

2  Kline's  Est.,  61  Penn.  St.  122. 

8  Drury  v.  Hook,  1  Vern.  412;  Cole  v.  Gib.son,  1  Yes.  507;  Deben- 
ham  V.  Ox,  id.  277 ;  Smith  r.  Aykwell,  3  Atk.  5GG ;  Smith  r.  Bruning,  2 
Vern.  392;  Williamson  i'.  Gihon,  2  Sch.  &  L.  357;  Roberts  r.  lloberts, 
3  P.  Wms.  70. 

*  Ilartvvell  v.  Ilartwell,  4  Yes.  811;  Morris  v.  IMcCulloch,  Arab.  432; 
2  Eden,  1(I0 ;  Writhingham  v.  Burgoyne,  2  Anst.  QUO  ;  Harrington  r.  Du- 
chattel,  1  Bro.  Ch.  124. 

6  Robinson  v.  Cox,  9  Mod.  2G3 ;  Walker  v.  Perkins,  3  Burr.  15GS  ;  1 
Bla.  517  ;  Rex  v.  Inhabitants  of  Northwingfield,  1  B.  &  Ad.  912  ;  Wine- 
brinner  r.  Weiseger,  3  Monr.  35;  Travinger  r.  McBurney,  5  Cow.  2.53; 
Cusack  V.  White,  3  Const.  Ct.  R.  284;  Fuller  v.  Dame,  18  Pick.  472; 
Pingry  v.  Washburn,  1  Aiken,  2G4;  Grolick  v.  Ward,  5  Ilalst.  87  ;  Wood 
r.  McCann, 6  Dana,  3G6;  Clippinger  v.  Hipbaugh.  3  W.  &  S.  315;  Harris 
r.  Roop,  10  Barb.  489;  Sedgwick  v.  Stanton,  4  Kern.  289;  Froat  v.  Bel- 
mont, 6  Allen,  152. 

6  Marshall  v.  Baltimore  &  Ohio  Railw.,  16  How.  153. 

^  Robinson  r.  Gee,  1  Yes.  251;  Gray  v.  Mathias,  5  Yes.  2S6;  Franco 
V.  Bolton,  3  Yes.  370. 

8  St.  John  V.  St.  John,  11  Yes.  535  ;  Reynell  v.  Sprye,  1  De  G.,  M.  &  G. 
660. 

311 


§  215.]  CONSTRUCTIVE    TliUSTS.  [CHAP.    VI. 

advanced  money  upon  an  immoral  or  illegal  contract,  the 
law  will  give  him  no  aid  to  recover  it  back.  But  equity  will 
sometimes  fasten  a  trust  upon  the  conscience  of  the  party 
who  has  received  money  or  property  under  such  contracts, 
and  compel  him  to  repay  or  reconvey  it,^  especially  if  the 
illegal  purpose  fails. ^ 

§  215,  If  at  a  sale  of  an  estate  of  a  debtor  upon  execution, 
any  one  announces,  for  the  purpose  of  preventing  competi- 
tion, that  he  is  bidding  or  purchasing  for  the  debtor  ;3  or  if, 
upon  the  sale  of  the  property  of  a  deceased  person,  a  bidder 
announces  that  he  is  purchasing  for  the  benefit  of  children  or 
heirs,  or  if  at  a  mortgagee's  sale  a  person  announces  that  he 
is  purchasing  for  the  mortgagor,  and  thus  prevents  competi- 
tion, the  purchaser  will  be  held  to  be  a  trustee  for  the  benefit 
of  the  parties  interested  in  the  property.^  So  if  any  one 
professing  to  act  for  another  purchases  for  himself,  he  will 
be  held  as  a  trustee.^  But  in  such  cases  there  must  be 
some  proof  of  fraud  and  deceit  practised  by  the  purchaser ; 

1  Smith  r.  Bruning,  2  Vern.  302;  Morris  v.  McCulloch,  Amb.  432; 
Ownes  V.  Ownes,  23  N.  J.  Eq.  60. 

2  Symes  v.  Hughes,  L.  R.  9  Eq.  475. 

3  Kiuard  (■.  Hiers,  2  Rich.  Eq.  423  ;  Lloyd  v.  Currin,  3  Humph.  462  ; 
Seichrist's  App.,  66  Penn.  St.  237;  Miller  v.  Antle,  2  Bush,  407  ;  Bran- 
nin  V.  Brannin,  18  N.  J.  Ch.  282  ;  Crutcher  v.  Hord,  4  Bush,  360;  Roach 
r.  Hudson,  8  Bush,  410;  Brown  v.  Lynch,  1  Paige,  147;  Tankard  v. 
Tankard,  84  N.  C.  286. 

^  Brown  v.  Dysinger,  1  Rawle,  408;  Kellum  v.  Smith,  9  Casey,  158; 
Sheriff  v.  Neal,  6  Watts,  531 ;  Sharp  i'.  Long,  4  Casey,  443  ;  IMorey  v. 
Herrick,  6  Harris,  123;  Williard  y.  Williard,  6  P.  F.  Smith,  119;  Robert- 
son V.  Robertson,  9  Watts,  32;  Plumer  v.  Reed,  2  Wright,  46;  Beegle  v. 
Wentz,  73  Penn.  St.  369  ;  Kisler  v.  Kisler,  2  Watts,  323 ;  McCaskey  v. 
Graff,  11  Harris,  321  ;  Abbey  v.  Dewey,  1  Casey,  114;  McRarey  v.  Huff, 
32  Ga.  681;  Ryan  r.  Dox,  34  N.  Y.  307;  JMackay  v.  Martin,  26  Tex. 
225;  Dennis  V.  McCagg,  32  111.  429;  Cook  v.  Cook,  69  Penn.  St.  443; 
Jenckes  v.  Cook,  9  R.  I.  520.  So,  as  to  a  party  holding  bonajide  a  clahn 
upon  the  property,  whether  valid  or  not.  Wolford  v.  Hemington,  86 
Penn.  St.  39. 

5  Rothwelli^.  Dawes,  2  Black  (U.   S.),  613;  O'Xeil  v.  Hamilton,  44 
Penn.  St.  18;  Coe  r.  Bradley,  49  Maine,  388;  Baylis  v.  Baxter,  22  Col. 
175;  Adams  v.  Bradley,  12  Mich.  346;  Drennen  v.  Walker,  21  Ark.  539. 
312 


CHAP.    VI.]  CONVEYANCES  UPON  SECRET  TRUSTS.  [§  217. 

the  mere  breach  of  a  parol  agreement  will  not  create  a  con- 
structive trust  in  such  cases;'  and  if  the  conduct  of  the  j)ur- 
chaser  is  not  fraudulent  and  jiroduces  no  injury,  a  trust  is 
not  raised.^  If  the  parties  for  whom  the  jjurchaser  pretends 
to  buy  have  no  interest  in  the  property,  they  cannot  estab- 
lish a  trust.  ^ 

§  21G.  Again,  if  a  testator  make  a  devise,  or  a  grantor  a 
conveyance,  upon  a  secret  trust  in  fraud  of  the  law,  or  for  a 
purpose  forbidden  by  law,  or  contrary  to  public  policy,  those 
interested  may  bring  a  bill  alleging  the  secret  trust,  and  the 
fraud  upon  the  law,  and  the  persons  to  whom  the  devise  or 
conveyance  was  made  must  answer,  notwithstanding  the 
statute  of  frauds.^  (a)  If  such  fraudulent  trust  appear  by  the 
answer,*^  or  by  any  clear  and  explicit  proof  in  opposition  to 
the  answer, "^  a  trust  will  be  declared  and  enforced  in  favor  of 
those  interested  in  the  estate,  or  in  the  event  of  the  failure  of 
the  illegal  trust.  In  all  cases  of  actual  fraud  parol  evidence 
is  admissible,  otherwise  a  fraud  put  in  writing  would  always 
escape.' 

§  217.  Another  large  class  of  constructive  trusts  arises 
from  purchases  or  conveyances  from  trustees,  or  other  per- 
sons holding  a  fiduciary  relation  to  property.     It  is  a  uni- 

1  Minott  V.  Mitchell,  30  Ind.  288. 

2  Taylor  v.  Hoardinaii,  24  Mich.  287. 

8  Rogers  v.  Simmons,  58  111.  76  ;  Walter  v.  Klock,  55  111.  82. 

*  Muckleston  v.  Brown,  6  Ves.  52;  Podmore  v.  Gunning,  7  Sim.  644; 
Chamberlain  v.  Agar,  2  V.  &  B.  259;  Strickland  v.  Aldridge,  9  Ves.  513; 
Edwards  v.  Pike,  1  Eden,  267 ;  Walgrave  v.  Tebbs,  2  K.  &  J.  313  ;  Rob- 
inson V.  King,  6  Ga.  5.50. 

6  Cottingham  v.  Fletcher,  2  Atk.  155;  Bozon  v.  Statham.  1  Eden, 
508;  Bishop  v.  Talbot,  cited  6  Ves.  60;  Adlington  v.  Cann,  3  Atk.  141 ; 
Paine  o.  Hall,  18  Ves.  473  ;  1  Eden.  515,  n.  (a). 

«  How  V.  Camp,  Walk.  Ch.  427;  Strickland  v.  Aldridge,  9  Ves.  520; 
Pring  V.  Pring,  2  Vern.  99. 

•'  Ibid. 

(a)  See  Yardley  v.  Sibbs,  84  F.  R.  531 ;  Brown  v.  Bradford,  103  Iowa, 
378;  supra,  §  212,  note  (a). 

313 


§  217.]  CONSTRUCTIVE  TEUSTS.         [CHAP.  VI. 

versal  rule,  that  if  a  man  purchases  property  of  a  trustee, 
with  notice  of  the  trust,  he  shall  be  charged  with  the  same 
trust,  in  respect  to  the  property,  as  the  trustee  from  whom 
he  purchased.^  And  even  if  he  pays  a  valuable  considera- 
tion, with  notice  of  the  equitable  rights  of  a  third  person,  he 
shall  hold  the  property  subject  to  the  equitable  interests  of 
such  person. 2  Of  course,  a  mere  volunteer,  or  person  who 
takes  the  property  without  paying  a  valuable  consideration, 
will  hold  it  charged  with  all  the  trusts  to  which  it  is  sub- 
ject, whether  he  have  iiotice  or  not ;  for  in  such  case  no  wrong 
or  pecuniary  loss  can  fall  upon  him,  in  compelling  him  to 
execute  the  trust  to  which  the  property  that  came  to  him 
without  consideration  was  subject.  Such  purchases  from 
trustees,  whether  for  value  or  not,  are  fraudulent,  and  equity 
will  follow  the  property  and  fasten  the  original  trust  upon  it 
for  the  security  of  the  cestui  que  trust,  or  other  person  hold- 

1  Le  Neve  v.  Le  Neve,  Amb.  436;  3  Atk.  646;  1  Ves.  64;  2  Lead.  Cas. 
Eq.  23  and  notes;  Merry  v.  Abney,  1  Ch.  Cas.  38;  Potter  v.  Sanders,  6 
Hare,  1 ;  Kennedy  v.  Daly,  1  Sch.  &  L.  355  ;  Crofton  v.  Ormsby,  2  Sch.  & 
L.  583  ;  Ferras  v.  Cherry,  2  Vern.  384  ;  Daniels  v.  Davidson,  16  Ves.  249; 
Brooke  v.  Bulkeley,  2  Ves.  498 ;  Jennings  v.  Moore,  2  Vern.  609 ;  2  Bro. 
P.  C.  278;  Birch  v.  EUames,  2  Anst.  427;  Mackreth  v.  Symmons,  19 
Ves.  349;  Grant  v.  Mills,  2  V.  &  B.  306;  Saunders  v.  Dehew,  2  Vern. 
271 ;  Mansell  v.  Mansell,  2  P.  Wms.  681 ;  Wigg  v.  Wigg,  1  Atk.  382 ; 
Dunbar  v.  Tredennick,  2  B,  &  B.  319 ;  Pawlett  v.  kit.  Gen.  Hardr.  465  ; 
Burgess  v.  Wheate,  1  Eden,  195  ;  Adair  v.  Shaw,  1  Sch.  &  L.  262;  Mead 
V.  Orrery,  3  Atk.  238 ;  Bovey  v.  Smith,  1  Vern.  149  ;  Phayre  r.  Peree,  3 
Dow,  129  ;  Wormley  v.  Wormley,  8  Wheat.  421  ;  Oliver  v.  Piatt,  3  How. 
333  ;  Caldwell  v.  Carrington,  9  Peters,  86  ;  Wright  v.  Dame,  22  Pick.  55; 
Clarke  v.  Hackerthorn,  3  Yeates,  269  ;  Peebles  v.  Reading,  8  S.  &  R. 
495;  Reed  I'.  Dickey,  2  Watts,  495 ;  Hood  v.  Fannestock,  1  Barr.  470; 
Wilkins  I'.  Anderson,  1  Jones,  399;  Denn  i'.  McKnight,  6  Ilalst.  385; 
Murray  v.  Ballou,  1  Johns.  Ch.  566  ;  Bailey  v.  Wilson,  1  Dev.  &  Bat. 
182 ;  Massey  v.  Mcllwaine,  2  Hill,  Eq.  426 ;  Benzien  v.  Lenoir,  1  Car. 
L.  R.  504 ;  Pugh  v.  Bell,  1  J.  J.  Marsh.  403 ;  Liggett  v.  Wall,  2  A.  K. 
Marsh.  149;  Truesdell  v.  Calloway,  6  Miss.  605;  Suydam  v.  Martin, 
Wright,  384 ;  Winged  v.  Lefebury,  1  Eq.  Ca.  Abr.  32  ;  Taylor  v. 
Stibbert,  2  Ves.  Jr.  437  ;  Case  v.  James,  29  Beav.  512 ;  Cary  v.  Eyre, 
1  De  G.,  J.  &  S.  149;  Jones  v.  Shaddock,  41  Ala.  362;  Ryan  v.  Doyle, 
31  Iowa,  53  ;  Smith  v.  Walter,  49  Mo.  250  j  James  v.  Cowing,  17  Hun 
(N.  Y.),  256. 

2  Ibid. 

314 


CHAP.    VI.]  PURCHASES   FROM   TRUSTEES.  [§  218. 

ing  an  equitable  interest.^  The  rule  applies  not  only  to 
express  trusts,  or  those  expressly  declared  by  written  instru- 
ments, but  it  applies  to  constructive  trusts,  or  those  trusts 
that  arise  from  fraud.  Thus,  if  a  party  procures  a  convey- 
ance of  property  from  another  by  fraud,  he  shall  be  held  to 
be  a  constructive  trustee ;  and  if  he  sells  such  property  to  a 
third  person  who  has  full  knowledge  or  notice  of  the  fraud, 
Buch  third  jjcrson  will  be  equally  held  as  a  trustee.^  After 
a  purchase  is  once  made  from  a  trustee  with  notice  of  the 
trust,  the  person  taking  the  title  cannot  bar  the  interest  of 
the  cestui  que  trust  by  buying  in  other  interests,  or  by  levy- 
ing a  fine  or  suffering  a  recovery,  obtaining  a  judgment,  or 
by  procuring  the  assignment  to  himself  of  outstanding  mort- 
gages or  terms. ^  Having  once  taken  with  notice  of  the  trust, 
he  is  a  trustee  in  law,  and  a  trustee  cannot  defeat  the  inter- 
ests of  his  cestui  que  trust;  on  the  contrary,  all  the  interest 
that  the  trustee,  or  constructive  trustee,  shall  thus  buy  in, 
will  inure  to  the  benefit  of  the  title  for  the  cestui  que  trust.'^ 

§  218.  Of  course,  the  opposite  proposition  is  also  true, 
that  a  purchaser  for  a  valuable  consideration  without  actual 
or  constructive  notice  of  the  trust,  holds  the  property  dis- 
charged of  the  interest  of  the  cestui  que  trust.  It  is  thus 
stated  on  great  authority :  "  A  purchaser,  bona  fide  without 
notice  of  any  defect  in  his  title  at  the  time  he  made  the  pur- 
chase, may  buy  in  a  statute  or  mortgage,  or  any  other  incum- 
brance, and  if  he  can  defend  himself  at  law  by  any  such 
incumbrance  bought  in,  his  adversary  shall  never  be  aided 
in  a  court  of  equity  for  setting  aside  such  incumbrance,  for 
equity  will  not  disarm  a  purchaser^  hut  assist  him  ;  and  pre- 
cedents of  this  nature  are  very  ancient  and  numerous;  viz., 
where  the  court  hath  refused  to  give  any  assistance  against  a 

1  Ibid.;  Lyford  v.  Thurston,  16  N.  li.  399. 

*  Pye  r.  George,  1  P.  Wnis.  128  ;  Saunders  r.  Dehew,  2  Vern.  271  ; 
Mansell  v.  :\Iansell,  2  P.  Wms.  681  ;  Smith  r.  Bowen,  35  N.  Y.  83  ;  Lyons 
V.  Bodenhamer,  7  Kans.  455 ;  Sadler's  Appeal,  87  Penn.  St.  154. 

8  Moloney  r.  Kernan,  2  Dr.  &  W.  31 ;  Brook  /•.  Bulkeley,  2  Ves.  498. 

*  Bovey  i\  Smith,  1  Vern.  145 ;  Kennedy  c.  Daly,  1  Sch.  &  L.  37. 

315 


§  218.]  CONSTRUCTIVE   TRUSTS.  [CHAP.   VI. 

purchaser,  either  to  an  heir,  or  to  a  widow,  or  to  the  father- 
less, or  to  creditors,  or  even  to  one  purchaser  against  an- 
other. "  And  it  may  be  added  that  nothing  is  clearer  than 
that  a  purchaser  for  valuable  consideration  without  notice 
of  a  prior  equitable  right,  obtaining  the  legal  estate  at  the 
time  of  his  purchase,  is  entitled  to  priority  in  equity  as 
well  as  at  law,  according  to  the  well-known  maxim  that 
where  equities  are  equal  the  law  shall  prevail.^  But  while  a 
purchaser  for  value  without  notice  may  lay  hold  upon  any 
plank  to  save  himself,  he  cannot,  after  notice  of  the  trust, 
take  any  conveyances  from  the  trustee  of  outstanding  legal 
interests;  for  that  is  a  breach  of  the  trust,  and  he  cannot 

1  Bassett  v.  Nosworthy,  Ca.  t.  Finch,  102;  2  Lead.  Cas.  Eq.  1  &  notes 
Jerrard  v.  Saunders,  2  Ves.  Jr.  457 ;  Goleborn  v.  Alcock,  2  Sim  552 
Sanders  v.  Deligne,  Freem.  123  ;  Fagg's  Case,  1  Vern.  52 ;  1  Ch.  Cas.  68 
Harcourt  v.  Knowel,  2  Vern.  159  ;  Siddou  ;;.  Charnells,  Bunb.  298  ;  Jones 
r.  Powles,  3  M.  &  K.  581 ;  Willoughby  v.  Willoughby,  1  T.  R.  763  ;  Blake 
V.  Hungerford,  Pr.  Ch.  158 ;  Charlton  v.  Low,  3  P.  Wms.  328 ;  Ex  parte 
Knott,  15  Ves.  609  ;  Shine  v.  Gough,  1  B.  &  B.  436 ;  Bowen  v.  Evans,  1  Jon. 
&  La.  264;  Boone  v.  Chiles,  10  Pet.  177  ;  Watson  v.  Le  Roy,  6  Barb.  485; 
Walwyn  v.  Lee,  9  Ves.  24;  Varick  v.  Briggs,  6  Paige,  325;  Deraarest  n. 
Wynkoop,  3  Johns.  Ch.  147;  Dan  v.  McKnight,  6  Halst.  385;  Howell  v. 
Ashmore,  1  Stockt.  82 ;  Heilner  v.  Imbrie,  6  S.  &  R.  401  ;  Mundine  v. 
Pitts,  14  Ala.  84 ;  Tomkins  v.  Powell,  6  Leigh,  576 ;  Woodruff  v.  Cook,  1 
Gill  &  J.  270  ;  Whittick  v.  Kane,  id.  202 ;  High  v.  Batte,  10  Yerg.  335  ; 
Jones  1-.  ZoUicoffer,  2  Taylor,  214  ;  Owings  v.  Mason,  2  A.  K.  Marsh.  384  ; 
Halstead  v.  Bank  of  Kentucky,  4  J.  J.  Marsh.  554 ;  Blight  v.  Banks,  6 
Mon.  198  ;  Hughson  v.  Mandeville,  4  Des.  87 ;  Goodtitle  v.  Cummings, 
8  Blackf.  179 ;  Maywood  r.  Lubcock,  1  Bail.  Eq.  382 ;  Brown  i-.  Budd, 
2  Cart.  442;  Fletcher  v.  Peck,  6  Cranch,  36  ;  Alexander  v.  Pendleton,  8 
Cranch,  462  ;  Vattier  v.  Hinds,  7  Pet.  252 ;  Dana  v.  Newhall,  13  Mass. 
498;  Connecticut  u,  Bradish,  14  Mass.  296;  Trull  v.  Bigelow,  16  Mass. 
406  ;  Boynton  v.  Rees,  8  Pick.  29  ;  Gallatian  v.  Erwin,  Hopk.  48 ;  8  Cow. 
36  ;  Bumpus  v.  Platner,  1  Johns.  Ch.  213;  Griffith  v.  Griffith,  9  Paige,  315  ; 
Mott  i\  Clark,  9  Barr,  399 ;  Brackett  v.  Miller,  4  W.  &  S.  102 ;  Filby  v. 
]\Iiller,  1  Casey,  264;  Rutgers  v.  Kingsland,  3  Halst.  Ch.  178,  658; 
Holmes  v.  Stout,  3  Green,  Ch.  492 ;  City  Council  v.  Paige,  Spear,  Ch. 
159;  Lacy  v.  Wilson,  4  Munf.  412;  Curtis  r.  Lanier,  6  id.  42;  Dixon  v. 
Caldwell,  15  Ohio  St.  412 ;  Dillaye  v.  Commercial  Bank,  51  N.  Y.  345 ; 
Carter  v.  Carter,  3  K.  &  J.  639  ;  Sugd.  V.  &  P.  470 ;  Colesbury  v.  Dart, 
58  Ala.  573 ;  Hamilton  i\  Mound  City  Mut.  Life  Lis.  Co.,  3  Tenn.  Ch. 
124. 

316 


CHAP.  VI.]   SAFEGUAUDS  FOR  PURCHASES  WITHOUT  NOTICE.  [§  219. 

commit  a  breach  of  the  trust  to  protect  himself.^  JJut  a  pur- 
chase of  an  equitable  interest  only,  although  for  a  valuable 
consideration  and  without  notice,  cannot  prevail  against  a 
legal  title.  In  law  the  legal  title  must  always  prevail,  and 
in  equity  the  legal  title  will  prevail  if  the  equities  are 
equal.  ^ 

§  219.  This  protection  of  a  hona  fide  purchaser  for  value 
without  notice  is  clear  and  certain,  but  it  is  hedged  about 
with  great  care.  It  is  said  to  he  a  shield  to  protect,  and  not 
a  sword  to  attack.  It  is  surrounded  with  restrictions,  so  that 
it  may  not  become  a  cloak  for  fraud.  The  defendant  in  a 
suit  in  equity  must  clearly  and  unequivocally  swear  in  his 
answer  that  he  is  a  purchaser  for  value  without  notice,^  and 
he  must  set  forth  all  the  particulars  of  the  purchase,  and  the 
title  or  pretended  title  of  the  person  from  whom  he  pur- 
chased.* He  must  show  an  actual  conveyance  and  not 
merely  an  agreement  for  a  conveyance;^  and  it  must  be 
shown  that  the  consideration-money  named  in  the  deed  was 
paid  in  good  faith.  It  is  not  enough  that  the  consideration 
was  secured  to  be  paid ;  nor  is  a  recital  of  payment  in  the 

1  Saunders  r.  Dehew,  2  Vern.  271 ;  Freem.  123 ;  Allen  v.  Knight,  5 
Hare,  272 ;  Terrett  v.  Crombie,  6  Lans.  82. 

^  Snelgrove  v.  Snelgrove,  4  Des.  274 ;  Daniel  v.  HoUingshead,  16  Ga. 
196  ;  Larrow  v.  Beam,  10  Ohio,  148  ;  Jones  ;•.  Zollicoffer,  2  Taylor,  214  ; 
Brown  v.  Wood,  6  Rich.  Eq.  155;  Blake  v.  Heyward,  1  Bail.  Eq.  208; 
Shirras  v.  Caig.  7  Cranch,  48;  Jones  v.  Jones,  8  Sim.  633;  Pensonneau  v. 
Bleakley,  14  111.  15;  Boone  r.  Chiles.  10  Tet.  177;  Kramer  v.  Arthurs, 
7Barr,  165;  Wailps  r.  Cooper,  24  IMiss.  208;  Sergeant  r.  Ingersoll,  7 
Barr,  340;  3  Harris.  343;  Flagg  r.  Mann,  2  Sumn.  486,  556  ;  Cottrell  r. 
Hughes,  15  C.  B.  532;  Vattier  v.  Ilinde,  7  Pet.  252;  Parsons  v.  Jury,  1 
Yerg.  206;  Gallion  ?•.  INIcCaslin,  1  Blackf.  01 ;  IMarles  r.  Cooper,  22  Miss. 
208. 

»  Sugd.  V.  &  P.  507;  Marshall  r.  Frank,  8  Pr.  Ch.  480;  1  Anst.  14; 
Blacket  v.  Langlands,  Sel.  Cas.  Ch.  51 ;  Gilb.  58. 

^  Walwvn  V.  Lee,  9  Ves.  Jr.  26;  Story  r.  Winsor,  3  P.  Wms.  279; 
Head  v.  Egerton,  1  Vern.  246  ;  Trevanion  r.  Mor.se,  3  Ves.  32,  226;  Amb. 
421  ;  Jackson  v.  Rowe,  4  Russ.  514;  Lanesborough  v.  Kilmaine,  2  Moll. 
403;  PTughes  v.  Garth,  Amb.  421 ;  Page  v.  Lever,  2  Ves.  Jr.  450 ;  Dobson 
«.  Leadbeater,  13  Ves.  230. 

6  Head  v.  Egerton,  1  P.  Wms.  281;  Brandlyn  v.  Ord,  1  Atk.  571. 

317 


§  220.]  CONSTRUCTIVE  TRUSTS.         [CHAP.  VL 

deed  sufficient:  there  must  be  an  actual  payment.'  Then  he 
must  also  make  an  explicit  denial  of  notice  of  the  title  which 
is  attempted  to  be  set  up.  A  denial  of  knowledge  of  the 
particular  person  who  might  assert  such  title  is  not  suffi- 
cient ;2  notice  must  be  positively  and  affirmatively  denied, 
and  not  evasively  or  inferentially.^  If  particular  instances 
or  circumstances  of  notice  or  of  fraud  are  alleged,  there 
must  be  clear,  special,  and  particular  denials  of  each  and 
every  circumstance.*  These  stringent  rules  are  necessary 
for  the  protection  of  the  equitable  interests  of  one  person, 
where  the  legal  title  is  in  the  hands  of  another.^ 

§  220.  These  leading  propositions  are  simple  and  plain 
enough,  but  difficulties  frequently  arise  as  to  what  is  a  valu- 
able consideration,  and  whether  a  purchaser  had  notice  of 
the  equitable  estate,  and  when  and  how  he  obtained  it.  It 
is  well  established  that  a  conveyance,  to  be  good  against  the 
equitable  interest  of  a  cestui  que  trust,  must  be  for  a  valuable 
consideration,  and  that  a  conveyance  for  a  good  considera- 
tion, as  for  love  and  affection,  is  not  sufficient.^  But  if  the 
consideration  is  valuable,  it  need  not  be  adequate :  mere  in- 

1  MiUard's  Case,  Freem.  43 ;  WagstafE  v.  Read,  2  Ch.  Cas.  156;  More  v. 
Mayhow,  1  id.  34;  2  Freem.  175;  Day  v.  Arundel,  Hard.  510;  Harding- 
ham  V.  Nichols,  3  Atk.  304 ;  Maitland  r.  Wilson,  id.  814  ;  Moloney  v. 
Keruan,  2  Dr.  &  War.  31.     But  see  Parker  v.  Crittenden,  37  Conn.  148. 

2  Kelsal  V.  Bennett,  1  Atk.  522 ;  Brompton  v.  Barker,  cited  2  Vern.  159, 
is  not  law. 

3  3  P.  Wms.  244,  n.  (f) ;  Bran  r.  Marlborough,  2  P.  Wms.  492  (6  Res.)  ; 
Hughes  V.  Garner,  2  Y.  &  Col.  Exch.  328. 

4  Pennington  v.  Beechey,  2  S.  &  S.  282  ;  Anon.  2  Ch.  Cas.  161 ;  Price 
V.  Price,  1  Vern.  185;  Hardman  v.  Ellames,  5  Sim.  650;  2  M.  &  K.  732. 

fi  Alexander  v.  Pendleton,  8  Cranch,  462;  Hunter  v.  Simrall,  5  Litt. 
62  ;  Boone  v.  Chiles,  10  Pet.  177 ;  Bush  i:  Bush,  3  Strob.  Eq.  131  ;  Blight 
V.  Bank,  6  Mon.  698;  Halstead  v.  Bank  of  Kentucky,  4  J.  J.  Marsh.  5.54; 
]\Ioore  V.  Clay,  7  Ala.  142;  Pillow  v.  Shannon,  3  Yerg.  308;  Nante  v. 
]\IcPherson,  7  Munt.  599 ;  Dillard  v.  Crocker,  1  Spear,  Eq.  20  ;  Vattier  v. 
Hinde,  7  Pet.  252;  Jackson  v.  Rowe,  2  S.  &  S.  472;  Jones  v.  Powles,  3 
M.  &  K.  581. 

•  Upshaw  V.  Hargrove,  6  Sm.  &  M.  292 ;  Frost  v.  Beekman,  1  Johns. 
Cb.  288;  Patten  v.  Moore,  32  N.  H.  382;  Boone  v.  Baines,  23  Miss.  136; 
Everts  v.  Agnes,  4  Wis.  343;  Swan  r.  Ligan,  1  McCord,  Ch.  232. 
318 


CHAP.   VI.]  NOTICE.  [§  221. 

adequacy  of  consideration  will  not  defeat  a  purchase  for  a 
valuable  consideration  without  notice ;  but  gross  inadequacy 
of  a  valuable  consideration  would  be  evidence  affecting  the 
good  faith  of  the  transaction.'  Marriage  is  a  valuable  con- 
sideration for  a  conveyance;  but  if  a  conveyance  after  mar- 
riage is  made  in  pursuance  of  an  agreement  before  marriage, 
it  must  be  made  clearly  to  appear.^  The  general  definition 
of  a  valuable  consideration  embraces  not  only  some  valuable 
thing  or  property  given  or  transferred  to  another,  but  also 
some  loss  of  property  or  right,  or  the  forbearing  of  some 
legal  right  or  remedy.^ 

§  221.  In  order  that  one  may  claim  protection  as  a  bona 
fide  purchaser,  the  money  must  have  been  actually  paid  and 
the  conveyance  taken  before  notice  is  received  of  the  trust. 
If  the  money  is  secured,  but  not  paid,  notice  of  the  trust 
will  convert  the  purchaser  into  a  trustee,*  and  so  if  the 
money  is  paid,  but  the  conveyance  is  not  executed,  the 
weight  of  authority  is  that  notice  of  the  trust  will  destroy 

1  More  V.  Mayhow,  1  Cli.  Cas.  34;  Wagstaff  v.  Read,  2  Ch.  Cas. 
156 ;  Bullock  v.  Sadlier,  Amb.  7G4 ;  Mildraay  v.  Mildmay,  cited  Amb. 
767. 

2  Harding  v.  Hardrett,  t.  Finch,  9;  Lord  Keeper  v.  "Wyld,  1  Vern.  139. 
8  It  is  impossible  to  pursue  this  subject  in  all  its  details  and  distinctions 

in  a  work  of  this  character  without  exceeding  all  reasonable  limits.  The 
cases  will  be  found  mo.st  industriously  collected  in  the  notes  to  Bassett  v. 
Nosworthy,  2  Lead.  Cas.  Eq.  103-109,  and  the  distinctions  and  qualifica- 
tions are  fully  discussed. 

4  Tourville  c.  Naish,  3  P.  Wms.  387;  Story  i'.  Winsor,  2  Atk.  G30 ; 
^lore  V.  Mayhow,  1  Ch.  Cas.  34;  Jones  v.  Stanley,  2  Eq.  Cas.  Ab.  685; 
High  r.  Batte,  10  Yerg.  555;  Christie  r.  Bishop,  1  Barb.  Ch.  105;  Murray 
V.  Ballou,  1  Johns.  Ch.  506  ;  Jackson  v.  Cadwell,  1  Cow.  622 ;  Jewett  v. 
Palmer,  7  Cow.  65,  265;  Heatley  r.  Finster,  2  Johns.  Ch.  19;  Harris  v. 
Norton,  16  Barb.  264  ;  Patten  r.  Moore,  32  N.  II.  382  ;  I\IcBee  r.  Loftes, 
1  Strob.  Eq.  90;  Hunter  v.  Simrall,  5  Litt.  62;  Palmer  r.  William.s.  24 
Mich.  333;  Blanchard  v.  Tyler,  12  Mich.  339;  Stone  v.  Welling,  14  Mich. 
514;  Dixon  v.  Hill,  5  Mich.  404;  Warner  r.  Whittaker,  6  Mich.  133; 
Thomas  v.  Stone,  Walk.  Ch.  117  ;  Lewis  v.  Phillips,  17  Ind.  108;  Rhodes 
V.  Green,  36  Ind.  10;  Dugan  v.  Vattier,  3  Biackf.  245;  Perkinson  c. 
Hanna,  7  Biackf.  400.  But  see  Parker  v.  Crittenden,  37  Conn.  148 ;  2 
Dart,  V.  &  P.  760. 

319 


§  222.]  CONSTRUCTIVE   TRUSTS.  [CIIAP.   VI. 

the  protection  of  the  purchaser.^  It  is  held  that  the  money 
must  be  wholly  paid  before  notice.^  This  rule  proceeds  upon 
the  ground,  that,  as  the  purchaser  is  taking  the  transfer  of  a 
title  that  defeats  the  equitable  right  of  a  third  person,  he 
shall  be  held  to  take  such  title  subject  to  all  the  equities 
that  attach  to  it  at  the  time  it  passes.  If,  therefore,  he  pays 
no  money  at  the  time  the  title  passes,  he  has  no  equity  to  set 
up  against  the  equity  of  a  third  person,  and  if  he  has  notice 
before  he  pays  the  money,  he  pays  in  his  own  wrong.  And 
so,  if  he  has  paid  his  money,  but  has  not  yet  taken  the  title 
when  he  receives  notice,  he  takes  the  title  subject  to  all  the 
equities  that  attach  to  it  when  the  conveyance  is  actually 
made  to  him,  as  he  then  has  a  right  to  refuse  the  conveyance 
and  to  demand  back  his  money. ^  In  Pennsylvania,  however, 
it  is  established  that  part-payment  of  the  purchase-money 
before  notice  will  give  the  purchaser  an  equity  pro  tanto.^ 
So,  if  a  purchaser  without  notice  make  improvements  on  the 
land,  not  having  paid  the  purchase-money  in  full,  he  will 
have  an  equitable  lien  on  the  land  for  the  amount  of  his 
expenditures,  although  he  has  no  defence  to  a  bill  to  enforce 
the  rights  of  the  cestui  que  trust. ^  This  is  in  analogy  to  the 
statutes  that  give  a  defendant  in  a  real  action  a  claim  for 
improvements  upon  an  estate,  which  he  has  made  in  igno- 
rance of  the  title  against  him. 

§  222.  The  notice  of  the  trust  may  be  either  to  the  pur- 
chaser himself,  or  to  his  agent,  counsel,  or  attorney.     The 

1  Wigg  V.  Wigg,  1  Atk.  384 ;  2  Sugd.  V.  &  P.  27i. 

2  Wormley  v.  Wormley,  8  Wheat.  421;  Wood  v.  Mann,  1  Sumn.  506. 

8  Warner  v.  Winslow,  1  Sandf.  Ch.  430 ;  Yattier  v.  Hinde,  7  Pet.  252; 
Bush  V.  Bush,  3  Strob.  Eq.  131;  Kyle  r.  Tait,  6  Grat.  44;  Doswell  r. 
Buchanan,  3  Leigh,  362;  Dillard  i'.  Crocker,  1  Spear,  Eq.  20;  Duncan  r. 
Johnson,  2  Eng.  190;  Cook  v.  Bronaugh,  8  Eng.  190;  Frost  r.  Beekman, 
1  Johns.  Ch.  288 ;  Cole  v.  Scott,  2  Wash.  141 ;  Abell  v.  Howe,  43  Vt.  403. 

4  Youst  V.  Martin,  3  Serg.  &  R.  423;  Lewis  v.  Bradford,  10  Watts,  67; 
Bellas  V.  McCarthy,  10  Watts,  13;  Juvenal  v.  Jackson,  2  Harris,  519; 
Uhrich  v.  Beck,  1  Harris,  631 ;  4  Harris,  499;  Paul  v.  Fulton,  25  Mo.  156. 

^  Boggs  V.  Yarner,  0  Watts  &  S.  469;  Farmers'  Loan  Co.  v.  Maltby, 
8  Paige,  563;  Frost  v.  Beekman,  1  Johns.  Ch.  288;  Doswell  v.  Buchanan, 
3  Leigh,  361  ;  Flagg  v.  Mann,  2  Sumn.  486;  Everts  v.  Agues,  4  Wis.  343. 
320 


ciiAr.  VI.]  NOTICE.  [§  222. 

general  rule  is  that  notice  to  an  agent  is  notice  to  his  prin- 
cipal.' The  notice,  if  to  an  agent,  must  be  to  an  agent  for 
the  purpose  of  the  purchase,  and  the  notice  must  be  to  liim 
while  engaged  in  the  transaction,^  for  the  reason  that  notice 
to  agents  generally,  without  reference  to  the  particular  busi- 
ness in  hand,  is  not  binding  upon  the  principal."  Notice  to 
a  husband  is  not  notice  to  a  wife,  unless  he  is  her  agent,  and 
is  engaged  ujjon  the  business  when  he  receives  the  notice.^ 
Upon  the  same  principle,  knowledge  by  an  executor  before 
the  death  of  his  testator  is  not  notice  to  him  after  his  ap- 
pointment as  executor.^  It  has  been  held  in  some  cases, 
that  the  notice  to  the  principal,  to  convert  him  into  a  trustee, 
must  be  given  to  him  during  the  progress  of  the  transaction, 
as  he  might  have  known  the  facts  long  before  and  forgotten 
them.^  If  the  first  purchaser  from  the  trustee  take  the 
property,    bona  fide  for  value  and   without  notice,   all  pur- 

1  Hovey  v.  Blanchard,  13  N.  H.  145;  Aster  i-.  Wells,  4  Wheat.  466; 
Bank  of  U.  S.  r.  Davis,  2  Hill,  451;  Griffith  v.  Griffith,  9  Paige,  315  ; 
Jackson  v.  Winslow,  9  Cow.  13 ;  Jackson  v.  Sharp,  9  Johns.  1G3  ;  Jackson 
V.  Leek,  19  Wend.  339;  Westerwelt  v.  HofF,  2  Sandf.  98;  Barnes  v. 
LIcChristie,  3  Penn.  67;  Blair  v.  Owles,  1  Munf.  38;  Brotherton  v.  Ilutt, 

2  Vern.  574  ;  Newstead  v.  Searles,  1  Atk.  265  ;  Le  Neve  v.  Le  Neve,  3  Atk. 
646 ;  1  Ves.  64 ;  2  Lead.  Cas.  Eq.  165,  notes ;  Tunstall  v.  Trappes,  3  Sim. 
301 ;  Maddo.x  r.  Maddox,  1  Ves.  61 ;  Ashley  v.  Bailley,  2  Ves.  368  ;  Bracken 
V.  ]\Iiller,  4  Watts  &  S.  108;  Espin  r.  Pemberton,  3  De  G.  &  J.  547. 

2  Howard  Ins.  Co.  v.  Halsey,  4  Seld.  271 ;  Bracken  v.  INI iller,  4  Watts 
&  S.  102 ;  Bank  of  U.  S.  v.  Davis,  2  Hill,  451  ;  Hood  v.  Fahnestock,  8 
Watts,  489 ;  Winchester  r.  Baltimore  R.  R.  Co.,  4  Md.  231  ;  Preston  r. 
Tubbin,  1  Vern.  286;  Mountford  v.  Scott,  3  :\Iadd.  34;  Warwick  r.  War- 
wick, 3  Atk.  291 ;  Ashley  r.  Bailley,  2  Ves.  368 ;  Worsley  v.  Scarborough, 

3  Atk.  392  ;  Tylee  v.  Webb,  6  Beav.  552;  14  Beav.  14 ;  Finch  v.  Shaw,  19 
Beav.  500 ;  5  H.  L.  Cas.  905 ;  Fuller  v.  Bennett,  2  Hare,  394.  But  see 
Abell  r.  Howe,  43  Vt.  403. 

«  Ibid. ;  U.  8.  Insurance  Co.  r.  Schriver,  3  Md.  Ch.  381;  Fulton  Bank 
r.  New  York  Coal  Co.,  4  Paige,  127;  Bank  i\  Payne,  25  Conn.  414  ;  North 
River  Bank  v.  Aymar,  3  Hill,  362 ;  Henry  v.  Morgan,  2  Beun.  497  ;  Ross 
f.  Horton,  2  Cuslunan,  591. 

*  Snyder  v.  Sponable,  1  Hill,  56;  77  Hill,  427. 

8  Gold  I'.  Death,  Cro.  Jac.  381 ;  Hob.  92. 

6  Hamilton  v.  Royse,  2  Sch.  &  Lef.  377;  2  Sugd.  V.  &  P.  277;  Henry 
V.  iMorgan,  3  Biun.  497  ;  Boggs  v.  Varner,  6  Watts  &  S.  469 ;  Bracken  v. 
Miller,  4  Watts  &  S.  111. 

VOL.  I.— 21  321 


§  223.]  CONSTEUCTIVE    TRUSTS.  [CHAP.    VI. 

chasers  from  him  will  take  the  propertj'  discharged  of  the 
equitable  claims,  although  they  have  notice  of  them  at  the 
time  they  purchase  of  the  first  purchaser,  and  such  notice  to 
them  cannot  convert  them  into  trustees.*  But  if  the  prop- 
erty comes  back  into  the  hands  of  the  original  trustee,  or 
into  the  hands  of  any  one  affected  with  the  guilt  of  the  origi- 
nal sale,  he  will  be  a  trustee  for  the  defrauded  party,  al- 
though the  property  may  have  passed  through  several  innocent 
hands.  2  (a) 

§  223.  Notice  to  the  purchaser  may  be  either  actual  or 
constructive.  Actual  notice  is  a  knowledge  of  the  facts  of 
the  trust  brought  home  to  the  purchaser,  or  a  knowledge  of 
such  facts  as  should  lead  him  to  a  knowledge  of  the  actual 
facts  of  the  case.^  Constructive  notice  is  a  legal  presump- 
tion of  notice  unless  controlled,  and  in  most  cases  it  is  not 
susceptible  of  rebuttal,  even  by  evidence  that  in  fact  there 
was  no   actual   knowledge.*  (l)     Thus,    by   statutes    of  the 

1  Harrison  r.  Forth,  Pr.  Ch.  51  ;  Sweet  v.  Southcote,  2  Bro.  Ch.  66 ; 
Brandlyn  v.  Ord,  1  Atk.  571;  Lowther  v.  Charlton,  2  Atk.  242  ;  Lacy  v. 
Wilson,  4  Munf.  313  ;  Fletcher  v.  Feck,  6  Cranch,  87;  Boone  v.  Chiles, 
10  Pet.  187;  Truluck  v.  Peoples,  3  Kelly,  446  ;  Griffith  v.  Griffith,  9  Paige, 
315;  Boynton  v.  Reese,  8  Pick.  329;  Mott  w.  Clarke,  9  Barr,  399;  Trull 
V.  Bigelow,  16  Mass.  406;  Parker  v.  Crittenden,  37  Conn.  145;  Terrett  v. 
Crombie,  6  Lansing,  82. 

2  Bovey  v.  Smith,  1  Vern.  149;  Schutt  v.  Large,  6  Barb.  373;  Law- 
rence V.  Stratton,  6  Cush.  163;  Church  v.  Ruland,  64  Penn.  St.  441. 

3  Mayor  v.  Williams,  6  Md.  235. 

4  Pvogers  V.  Jones,  8  N.  H.  264;  Plumb  v.  Fluitt,  2  Anst.432  ;  Griffith 
V.  Griffith,  1  Hoff.  153;  Farnsworth  v.  Child,  4  Mass.  637. 

(a)  Williams  ?;.  Williams  (Mich.),  156  N.  Y.  459;  Trinidad  v.  Mil- 
76  N.  W.  1039.  In  a  naked  trust,  waukee,  &c.  Co.  63  F.  R.  883  ; 
notice  to  the  cestui  que  trust  is  notice  Coudit  v.  Maxwell,  142  Mo.  266  ; 
to  the  trustee.  Coryell  v.  Klehm,  Swasey  i\  Emerson,  168  Mass.  118. 
157  111.  462.  Persons  who  deal  with  trustees  act- 

(b)  Constructive  notice  of  the  ing  under  a  recorded  deed  are 
terms  and  conditions  of  a  trust  affected  with  notice  of  its  contents 
arises  from  such  circumstances  as  defining  their  powers.  Stark  v.  01- 
would  lead  a  reasonably  cautious  sen,  44  Neb.  646.  A  purchaser  at 
person  to  investigate.  First  Xat'l  a  sale  under  a  power  must  ascertain 
Bank   v.    Xat'l    Broadway    Bank,  at  his  peril  the  extent  of  the  power 

322 


CHAP.    VI.] 


NOTICE. 


[§  223. 


several  States  the  recording  of  a  deed  is  made  notice  to  all 
subsequent  purchasers,  though  it  frequently  happens  that 
purchasers  have  no  actual  knowledge  from  the  record;  l»ut 
that  does  not  rebut  the  fact  of  notice,  for  the  reason  that  it 
is  their  duty  to  examine  the  records;  they  arc  therefore  con- 
clusively affected  -with  notice  of  all  of  the  record  which  is 
legally  made,  and  which  it  was  their  duty  to  examine.^  Lis 
pendens  is  constructive  notice;  that  is,  a  suit  pending  in 
the  public  courts,  concerning  the  title  of  the  property  pur- 
chased, is  constructive  notice  to  the  purchaser.'^  (a)  Actual 
possession  by  the  cestui  que  trust,  or  some  person  other  than 
the  vendor,  is  constructive  notice  to  the  purchaser  that  there 

1  Maul  V.  Reder,  59  Penn.  St.  1G7;  Smith  v.  Burgess,  133  Mass.  511,  514. 

-  Drew  V.  Norbury,  9  Ir.  Ecj.  170.  Upon  the  filing  of  a  bill  in  equity, 
and  before  the  service  of  the  subposna,  a  suit  is  lis  pendens.  Ibid.  See 
Leitch  V.  Wells,  48  N.  Y.  591. 


and  whether  it  still  continues.  Har- 
mon i\  Smith,  38  F.  R.  482;  Saurez 
r.  De  Montigny,  37  N.  Y.  S.  503. 

Xeither  a  trustee  nor  a  cestui  que 
trust  can  take  an  acknowledgment 
thereof  so  as  to  make  the  recording 
of  the  deed  notice.  Bowden  v. 
Parrish,  86  Va.  67  ;  Rothschild  r. 
Daugher,  85  Texas,  332 ;  Wasson 
V.  Connor,  54  Miss.  351. 

(a)  Lis  pendens  is  confined  to 
realty  and  leaseholds,  and  does  not 
apply  to  personal  property.  Wig- 
ram  V.  Buckley,  [1804]  3  Ch.  483 ; 
see  Price  v.  Price,  35  Ch.  D.  297; 
Norris  v.  He,  152  111.  190;  State  v. 
Commissioners  (Kans.),  53  Pac. 
526;  Osborn  v.  Glasscock,  39 
W.  Va.  749,  760.  It  relates  only  to 
suits  that  proceed  to  a  final  decree, 
and  not  to  those  in  which  the  bill 
is  dismissed  without  service  or 
appearance.  Allison  v.  Drake,  145 
111.  500.  In  equity,  contrary  to  the 
rule  at  law,  it  does  not  exist  until 
the  subpcena  is  served.     See  Hol- 


land ?'.  Citizens'  Bank,  16  R.  I. 
734;  Burt  v.  Gamble,  98  Mich.  402; 
Duff  r.  McDonough,  1.j5  Penn.  St. 
10;  Baker  v.  Bartlett,  18  Mont. 
440;  Stout  r.  Philippi  Manuf.  Co., 
41  W.  Va.  339;  Alliance  Trust 
Co.  V.  Nettleton  Hardwood  Co.,  74 
IMiss.  584  ;  Burleson  v.  iMcDermott, 
57  Ark.  229  ;  Zieverink  v.  Kemper, 
50  Ohio  St.  208.  It  does  not  affect 
one  who  purchases  in  good  faith 
after  final  decree  and  before  a  bill 
of  review  is  brought.  Rector  v. 
Fitzgerald,  59  F.  R.  808;  see  Cook  >:. 
French,  90  Mich.  525 ;  Pipe  r.  Jor- 
dan, 22  Col.  392;  47  Cent.  L.  J. 
408.  The  modern  rule  depends  upon 
the  inability  of  litigants  to  alienate 
contested  projierty,  rather  than  upon 
express  or  implied  notice.  See  !McIl- 
wrath  V.  Hollander,  73  Mo.  105  ;  Oli- 
phant  V.  Burns,  146  N.  Y.  218; 
Jaycox  V.  Smith,  45  N.  Y.  S.  299  ; 
Jewett  V.  Iowa  Laud  Co.,  64  Minn. 
531. 

323 


§  224]  CONSTRUCTIVE    TRUSTS.  [CHAP.   VI. 

is  some  claim,  title,  or  possession  of  the  property  adverse  to 
his  vendor ;  and  this  fact  should  put  him  upon  his  inquiry, 
for  if  he  had  inquired  he  would  have  discovered  the  exact 
title  and  the  equitable  claims  upon  it;  he  therefore  has  con- 
structive notice.  There  are  many  other  facts  and  circum- 
stances from  which  courts  will  presume  that  a  purchaser  had 
notice  of  the  equities  attached  to  an  estate.^  If  in  any  way 
a  person  purchases,  with  what  the  law  construes  to  be  full 
notice  that  another  has  a  legal  or  equitable  title  to  the  prop- 
erty, or  that  he  has  been  deprived  of  his  interest  by  accident, 
mistake,  or  fraud,  he  will  be  held  as  a  trustee.  ^ 

§  224.  The  same  general  principles  affect  the  sales  of 
property  by  executors  or  administrators.  Executors  can 
deal  with  real  estate  only  as  they  are  empowered  to  do  so  by 
the  will  of  testators.  Purchasers  must  therefore  look  to  the 
will  for  the  power  of  the  executor.  If  they  purchase  in 
good  faith  from  an  executor  with  power  to  sell,  they  will 
take  a  good  title ;  but  if  they  make  a  fraudulent  or  collusive 
purchase  from  an  executor  with  full  power  to  sell,  they  still 
hold  the  estate  upon  the  same  trusts  to  which  it  was  subject 
in  the  hands  of  the  executor.  If  there  are  no  powers  to  sell 
real  estate  given  to  executors  in  the  will,  they  have  no 
authority  to  deal  with  it,  unless  it  is  wanted  to  pay  debts  or 
legacies,  in  which  case  both  executors  and  administrators 
must  obtain  an  order  or  license  from  the  court  of  probate  to 
sell.  In  such  case  the  purchaser  must  see  that  the  order  of 
the  court  was  regularly  obtained,  and  that  it  is  properly 
complied  with.  Any  fraud  or  collusion  on  the  part  of  the 
executor  or  administrator,  in  procuring  the  decree  of  the 
court  or  in  the  conduct  of  the  sale,  would  convert  the  pur- 
chaser   into   a   trustee    for   heirs-at-law   or  other   persons 

1  It  is  impossible  to  state  all  the  distinctions  that  have  been  estab- 
lished upon  this  fruitful  source  of  litigation.  The  principles  are  most 
ably  stated  in  the  notes  to  Le  Neve  v.  Le  Neve,  2  Lead.  Cas.  Eq.  23 ;  Cal- 
houn V.  Burnett,  40  Miss.  599  ;  Pilcher  v.  Rawlins,  L.  R.  11  Eq.  53  ;  Car- 
ter V.  Carter,  3  K.  &  J.  687;  Farris  v.  Dunn,  7  Bush,  276. 

2  Forbes  v.  Hall,  34  111.  159. 

324 


ClLVr.    VI.]  ADMINISTRATOR.  [§  225. 

intcrestetl.'  So,  if  an  executor  or  administrator  pureliases 
indirectly  of  himself  throuj^h  a  third  ijcrson,  and  takes  a 
deed  to  himself  through  such  third  person,  the  sale  will  be 
void,  or  the  estate  will  be  held  in  trust  by  such  adminis- 
trator or  executor  for  the  heirs-at-law  or  other  persons 
interested. 

§  225.  An  executor  or  administrator  generally  has  full 
power  over  the  personal  estate  under  his  charge.  Therefore 
he  may  sell  the  same  and  give  a  good  title  to  a  purchaser.  ^ 
This  is  the  rule  at  common  law,  and  it  prevails  in  all  States 
where  it  is  not  changed  by  statute.  In  some  States  there 
are  statutes  that  direct  executors  or  administrators  to  sell 
the  personal  estate  of  the  deceased  at  pu])lic  auction,  or  in 
such  manner  as  the  court  having  jurisdiction  over  the 
administration  shall  order.  In  such  States,  purchasers  must 
see  to  it  that  executors  and  administrators,  in  making  sales, 
pursue  the  course  marked  out  for  them  by  the  statutes  or  by 
the  orders  of  the  court,  or  they  will  take  no  title. ^  In  all 
sales  by  executors  and  administrators  ^/oot^/ai^/i  is  indispen- 
sable. If  therefore  a  purchaser  knows,  or  has  notice,  that  a 
sale  by  an  administrator  is  fraudulent  or  collusive,  or  is  a 
devastavit^  or  is  for  the  purpose  of  a  misapplication  of  the 
assets,  his  title  will  not  be  allow^ed  to  prevail  against  the 
beneficial  interests  of  creditors,  specific  or  residuary  lega- 
tees,   or  next  of  kin  or  heirs.*     Equity  will  examine  the 

1  Brush  V.  Ware,  15  Pet.  93  ;  Brock  v.  Phillips,  2  Wash.  68. 

2  Field  V.  Schieffelin,  7  Johns.  Ch.  155  ;  Rayner  v.  Pearsall,  3  Johns. 
Ch.  578;  Hertell  v.  Bogert,  9  Paige,  57;  Yerger  v.  Jones,  16  How.  37; 
Miles  V.  Durnford,  2  Sim.  (n.  s.)  234 ;  Tyrrell  v.  Morris,  1  Dev.  &  Batt. 
559;  Hunter  f.  Lawrence,  11  Grat.  117;  Bond  r.  Ziegler,  1  Kelly,  324; 
Crane  v.  Drake,  2  Vern.  616;  Ewer  v.  Corbett,  2  P.  Wms.  148;  Xewland 
V.  Champion,  1  Ves.  105 ;  Jacomb  v.  Harwood,  2  Ves.  268 ;  Elmlie  t'. 
McAulay,  3  Bro.  Ch.  626  ;  Utterson  v.  Maire,  4  Bro.  Ch.  270  ;  2  Ves.  Jr. 
95  ;  Scott  V.  Tyler,  2  Dick.  725 ;  Bonney  v.  Ridgard,  1  Cox,  145  ;  Dick- 
son V.  Lockyer,  4  Ves.  42;  Doran  r.  Simpson,  id.  665;  Hill  o.  Simpson, 
7  Ves.  152. 

8  Fambro  v.  Gantt,  12  Ala.  305 ;  Bond  v.  Barksdale,  4  Des.  526  ;  Bond 
V.  Ziegler,  1  Kelly,  324;  Baines  v.  iNIcGee,  1  Sm.  &  M.  208. 

■»  Petrie  v.  Clark,  11  Serg.  &  R.  388;  Wylson  v.  Moore,  1  M.  &  K.  337; 

325 


§  225.]  CONSTRUCTIVE  TRUSTS.  [OHAP.   TI. 

transaction;  and  if  circumstances  appear  sufficient  to  put 
the  purchaser  on  his  guard  or  upon  his  inquiry,  the  sale  will 
be  avoided  or  the  purchaser  will  be  held  as  a  trustee.^  If 
the  transfer  is  by  way  of  pledge  or  sale  for  the  security  or 
payment  of  the  private  debt  of  the  administrator,  it  will  be 
equivalent  to  full  notice  of  the  illegality  of  the  transaction, 
and  fraudulent. 2  But  if  an  administrator  make  a  pledge  of 
the  assets  for  a  contemporaneous  advance  of  money  for  the 
use  of  the  estate,  it  will  be  held  to  be  a  valid  transaction ; 
or  if  the  sale  or  pledge  or  mortgage  is  afterwards  made  for  a 
previous  advance  made  in  good  faith  for  the  alleged  benefit 
of  the  estate,  it  will  be  valid.  ^  Of  course  knowledge  on  the 
part  of  the  purchaser,  that  the  executor  or  administrator  is 
dealing  with  the  assets  in  a  fiduciary  capacity,  is  not  enough 
to  raise  any  suspicion,  for  the  reason  that  it  is  the  duty  of 
the  administrator  to  dispose  of  the  assets  and  settle  the 
estate ;  and  so  a  trustee  may  sell  and  transfer  absolutely  the 
personal  property  of  his  trust,  if  he  have  power  to  vary  the 
securities;  and  if  he  sells  and  transfers  notes,  stocks,  or 
other  securities  standing  in  his  name  as  trustee,  the  pur- 
chaser, from  that  fact  alone,  cannot  be  holden  as  a  construc- 

Cole  V.  Miles,  10  Hare,  179 ;  Saxon  v.  Barksdale,  4  Des.  526 ;  McXair's 
App.,  4  Rawie,  155;  Johnson  v.  Johnson,  2  Hill,  Eq.  277;  Mead  v.  Or- 
rery, 3  Atk.  235;  McLeod  v.  Drummond,  14  Ves.  361 ;  17  Ves.  169  ;  Field 
V.  Schieffclin,  7  Johns.  Ch.  155  ;  Colt  v.  Lasnier,  9  Cow.  320  ;  Sacia  ». 
Berthoud,  17  Barb.  15  ;  Williamson  v.  Branch  Bank,  7  Ala.  906  ;  Swink 
V.  Snodgrass,  17  Ala.  653 ;  Garnett  v.  Macon,  6  Call.  361 ;  Dodson  v.  Simp- 
son, 2  Rand.  294;  Graff  v.  Castle  man,  5  Rand.  204;  Parker  r.  Gillian, 
10  Yerg.  294 ;  Williamson  v.  Morton,  2  Md.  Ch.  94 ;  Lowry  v.  Farmers' 
Bank,  10  P.  L.  J.  3  ;  Am.  L.  J.  (x.  s.)  111. 

1  McXeillie  v.  Acton,  4  De  G.,  M.  &  G.  744. 

2  Petrie  v.  Clark,  11  Serg.  &  R.  388;  Shaw  v.  Spencer,  100  Mass.  382; 
Judson  V.  National  City  Bank,  8  Blatch.  430,  and  cases  cited ;  Pendleton 
V.  Fay,  2  Paige,  202  ;  Bayard  v.  Farmers',  &c.  Bank,  52  Penn.  St.  232 ; 
Baker  r.  Bliss,  39  N.  Y.  76  ;  Carr  v.  Hilton,  1  Curtis,  390-393 ;  Field  v. 
Schieffelin,  7  Johns.  Ch.  155  ;  Williamson  v.  Morton,  2  Md.  Ch.  94  ;  Gar- 
rard V.  R.  R.  Co.,  29  Penn.  St.  1-54  ;  Collinson  v.  Lister,  7  De  G.,  M.  &  G. 
634;  Dodson  v.  Simpson,  2  Rand.  294;  Williamson  v.  Branch  Bank,  7 
Ala.  906. 

8  Petrie  v.  Clark,  11  Serg.  &  R.  388;  Miles  v.  Dumford,  2  Sun.  (n.  s.) 
234 ;  Russell  v.  Plaice,  18  Beav.  21  ;  11  Jur.  124  ;  19  Jur.  445. 
326 


CHAP.  VI.] 


ADMINISTRATOR. 


[§  225. 


tive  trustee,  although  the  trustee  in  fact  transfci-s  such 
securities  or  order  to  obtain  ni(jney  for  his  own  pers<jnal  use. 
The  mere  fact  that  the  word  "  trustee  "  is  on  the  face  of  the 
securities  cannot  ])ut  a  purchaser  to  any  inquiry  beyond 
ascertaining  whether  tlic  trustee  has  power  to  vary  the 
securities,  (a)  If  he  has  such  power,  a  purchaser  in  (jood 
faith  will  be  protected,  although  the  trustee  use  the  money 
for  his  private  purposes.^  But  if  a  purchaser  takes  securi- 
ties from  a  trustee,  with  the  word  "trustee"  upon  their  face, 
in  payment  of  a  private  debt  due  from  the  trustee,  the  sale 
may  be  avoided  by  the  cestui  que  trusty  or  the  purchaser  may 
be  held  as  a  trustee. ^  And  so,  if  an  executor,  guardian,  or 
trustee  hold  certificates  of  shares  in  a  corporation,  he  may 
sell  the  same,  and  the  corporation  would  be  protected  in 
issuing  new  certificates  to  the  purchaser,  but  if  the  corpora- 

^  Ashton  V.  Atlantic  Bank,  3  Allen,  217  ;  Creigton  v.  llingle,  3  S.  C 
77  ;  Dillaye  v.  Com.  Bank,  51  N.  Y.  355. 

2  Shaw  V.  Spencer,  100  Mass.  388;  Jaudon  v.  National  Bank,  8  Blatch. 
430  ;  Duncan  v.  Jaudon,  14  Wall.   15. 


(a)  A  promissory  note  in  which 
the  payee's  name  is  followed  by  the 
word  "  trustee,"  is  negotiable.  See 
Fox  V.  Citizens'  Bank  &  Trust  Co. 
(Tenn.),  35  L.  R.  Ann.  678,  and 
note.  A  deposit  of  money  in  bank 
as  trustee  does  not  alone  establish 
a  trust,  but  the  addition  of  the  word 
"  trustee  "  to  the  grantee's  name  in 
a  conveyance  is  notice  that  there 
is  a  trust.  Marbury  r.  Ehlen, 
72  Md.  206;  Mercantile  Xat. 
Bank  c.  Parsons,  54  Minn.  56 ;  Park- 
man  r.  Suffolk  S.  Bank,  151  Mass. 
218  ;  Shepard  r.  Creamer,  160  Mass. 
496  ;  Cunningham  v.  Davenport, 
147  N.  Y.  43;  Beaver  v.  Beaver, 
117  id.  421  ;  Macy  v.  Williams,  83 
Hun,  243  ;  Isham  v.  Post,  71  id.  184 ; 
Hart  V.  Seymour,  147  111.  598;  John- 
eon  V.  Calnan,  19  Col.  168;  Ilahn  r. 
Hutchinson,  159  Penn.  St.  133 ;  Wal- 


lace V.  Langston,  52  S.  C.  133.  It 
may,  however,  be  mere  surplusage. 
See  supra,  §  82,  n.  A  mere  recital 
in  a  bond  that  it  and  others  of  the 
same  series  are  secured  by  trust 
deed  does  not  put  the  holder  on 
inquiry  as  to  the  terms  and  condi- 
tions of  the  deed.  Guilford  i\  Min- 
neapolis, &c.,  Ry.  Co.,  48  Minn.  560. 
See  De  Voss  v.  Richmond  (Va.), 
98  Am.  Dec.  646,  684 ;  McClelland 
V.  Norfolk  So.  R.  Co.,  110  N.  Y. 
469.  The  transferee  of  a  promis- 
sory note  which  is  secured  by  deed 
of  trust  may  require  the  enforce- 
ment of  the  trust.  Clark  c.  Jones, 
93  Tenn.  639.  Judgment  recovered 
upon  a  debt  so  secured  does  not  so 
merge  the  debt  as  to  take  away  such 
security.  Gibson  r.  Green,  89  Va. 
524.  See  McComb  v.  Frink,  149 
U.  S.  629. 

327 


§  226.]  CONSTRUCTIVE   TRUSTS.  [CIIAP.    VI. 

tion  knew  that  the  sale  or  transfer  was  a  breach  of  the  trust 
or  a  devaatavit,  it  might  be  held  as  a  constructive  trustee  for 
the  persons  beneficially  interested;  but  the  mere  fact  that 
the  fiduciary  character  of  the  vendor  appeared  upon  the  face 
of  the  transaction  would  put  the  corporation  upon  no  inquiry 
beyond  ascertaining  whether  he  had  authority  to  change  the 
securities.^ 

§  226.  The  statute  of  frauds  is  no  obstacle  in  the  way  of 
proof  of  an  actual  or  constructive  fraud  in  the  sale  of  prop- 
erty.^ Parol  evidence  is  admissible  to  establish  a  trust,  even 
against  a  deed  absolute  on  its  face,  if  it  would  be  a  fraud  to 
set  up  the  form  of  the  deed  as  conclusive.^  Lord  Hardwicke 
stated  "that  the  court  adhered  to  this  principle,  that  the 
statute  of  frauds  should  never  be  understood  to  protect  fraud, 
and  therefore  wherever  a  case  is  infected  with  fraud,  the 
court  will  not  suffer  the  statute  to  protect  it. "  *  Lord  Thur- 
low  added,  that  "  the  moment  you  impeach  a  deed  for  fraud 
you  must  either  deny  the  effect  of  fraud  upon  the  deed,  or 
you  must  admit  parol  evidence  to  prove  it.  "^  If  this  was 
not  so,  the  law  would  be  reduced  to  this  absurdity,  —  if  a 
fraud  could  once  succeed  in  procuring  the  transaction  to  be 
reduced  to  writing  and  signed  by  the  parties,  it  would  be 
protected  by  the  law  itself,  and  there  would  be  no  possible 
means  of  reaching  and  correcting  the  wrong.  But  in  such 
case  the  bill  must  contain  a  clear  and  distinct  charge  of 
fraud. ^     Therefore,  whenever  the  bill  sets  out  a  clear  case 

^  Ashton  V.  Atlantic  Bank,  3  Allen,  217,  and  cases  cited  note  1. 

2  Kayser  v.  Maugham,  8  Col.  232;  Bohm  v.  Bohm,  9  id.  100. 

3  Hall  V.  Livingston,  3  Del.  Ch.  348. 

*  Reach  v.  Keunigate,  1  Yes.  125  ;  Young  v.  Peachey,  2  Atk.  258 ; 
Walker  v.  Walker,  id.  98  ;  Hutchins  v.  Lee,  1  Atk.  418 ;  Montacnte  v. 
Maxwell,  1  P.  AVms.  620  ;  Lincoln  r.  Wright,  4  De  G.  &  J.  16  ;  Childers 
r.  Childers,  1  De  G.  &  J.  482  ;  Davis  v.  Oty,  35  Beav.  208 ;  Ryan  v.  Dox, 
34  N.  Y.  307 ;  Haigh  v.  Kaye,  L.  R.  7  Ch.  474. 

5  Shelborne  v.  Inchinquin,  1  Bro.  Ch.  350;  Hare  v.  Sherewood,  1  Yes. 
Jr.  243;  Townshend  v.  Stangroom,  6  Yes.  333;  Pym  v.  Blackburn,  3  Yes. 
38,  n. ;  and  see  Conolly  v.  Howe,  5  Yes.  701. 

6  Irnham  v.  Child,  1  Bro.  Ch.  94;  Portmore  v.  Morris,  2  Bro.Ch.  219; 

328 


CHAP.    VI.]  STATUTE    OF   FRAUDS.  [§  226. 

of  fraud,  parol  evidence  will  be  admitted  to  prove  it,  even  if 
the  eii'cct  of  such  evidence  is  to  contradict,  vary,  alter,  or 
destroy  written  instruments.*  The  mere  refusal  of  a  grantee 
to  execute,  or  the  denial  of  the  existence  of  an  invalid  parol 
trust  ujion  which  she  promised  to  hold  the  property,  is  not 
such  a  fraud  as  will  take  the  case  out  of  the  statute.^  But 
where  a  valuable  interest  passes  to  one  on  tho  faith  of  a 
contract  he  refuses  to  perform,  equity  will  compel  rcstitu- 
lion  or  give  other  apjjropriate  relief. ^  (a)  In  any  case  if  the 
trust  arises  from  the  acts  of  the  parties,  and  not  exclusively 
ivom  their  agreements,  the  statute  of  frauds  is  not  a  bar  to 
the  proof.*     But  where  a  conveyance  in  trust  is  made  volun- 

Forsyth  v.  Clark,  3  Wend.  637;  Gouverueur  v.  Elraendorf,  5  Johns.  Ch. 
79;  Kennedy  r.  Kennedy,  2  Ala.  571;  Skrine  r.  Simmons,  11  Ga.  401  ; 
McCalraont  v.  Rankin,  S  Hare,  18. 

1  Young  V.  Peachey,  2  Atk.  257  ;  Thynn  v.  Thynn,  1  Vern.  290;  Iru- 
ham  V.  Child,  1  Bro.  Ch.  93  ;  Cripps  v.  Gee,  4  Bro.  Ch.  475;  Oldham  v. 
Lechford,  2  Vern.  506  ;  Drakeford  v.  Wilks,  3  Atk.  539;  Reach  v.  Ken- 
iiigate,  1  Yes.  125;  Amb.  G7  ;  Pember  v.  Mathers,  1  Bro.  Ch.  52;  Wil- 
kinson r.  Bradfield,  1  Vern.  307 ;  Miller  r.  Cotton,  5  Ga.  316  ;  Christ  v. 
Diffenbach,  1  Serg.  &  R.  464;  Watkins  v.  Stockett,  6  II.  &  J.  345;  Elliott 
V.  Connell,  5  Sm.  &  M.  91;  Barrell  v.  Hanrick,  42  Ala.  00  ;  (b)  Judd  v. 
Mosely,  31  Iowa,  433. 

3  Scott  V.  Harris,  113  111.  447;  Tatge  v.  Tatge,  34  Minn.  275  ;  Towu- 
seud  r.  Fenton,  32  Minn.  482. 

8  Randall  v.  Constans,  33  Minn.  329;  Johnson  r.  Krassin,  25  Minn. 
118. 

*  Judd  V.  jNIosely,  30  Iowa,  428;  Bryant  v.  Hendricks,  5  Iowa,  256; 
Kincell  v.  Feldman,  22  Iowa,  363;  Ferguson  v.  Hass,  64  X.  C.  772  ; 
Squire's  App.,  70  Penn.  St.  268;  Reese  v.  Wallace,  113  111.  595.  And  so 
the  statute  of  frauds  is  not  a  bar  to  relief  in  other  cases  of  absolute  deeds, 
where  they  are  used  in  a  manner  and  for  purposes  not  contemplated  at 
the  time  of  their  execution.  Thus  a  deed  may  be  shown  to  be  a  mortgage 
or  security  for  a  debt,  although  there  was  no  written  defeasance,  and  no 
fraud,  accident,  or  mistake.     This  proposition  has  been  much  discussed. 

(a)  When  a  grantor  in  trust  has  conveyances.     Judge   r.   Pfaff,   171 

a  right  to  redeem  the  fund,  he  takes  Mass.  195. 

the  fund  as  he  finds  it,  subject  to  (/>)  Barrell  r.  Hanrick  was  over- 

any  changes  in  form  lawfully  made  ruled  in  Brock  /-.  Brock,  90  Ala.  86; 

by  the  trustee,   including  contracts  Manning  r.    Pippen,  86  .:Ua.   357 ; 

which  in  etiuity  have  the  effect  of  95  Ala.  537. 

329 


§  226.]  CONSTRUCTIVE   TKUSTS.  [CHAP.    VI. 

tarily  without  solicitation  or  undue  influence,  a  mere  promise 
to  hold  in  trust  is  within  the  statute.^     If  a  bill  is  brought 

The  latest  case,  Campbell  v.  Dearborn,  109  Mass.  130,  contains  a  review 
of  the  authorities  and  a  succinct  statement  of  the  doctrine ;  and  as  it  is 
upon  a  subject  closely  connected  with  constructive  trusts,  the  case  is 
given  at  large. 

"  From  those  facts,  and  from  the  bill  and  answer,  we  think  these  points 
must  be  taken  to  be  established  ;  to  wit,  1st,  that  the  plaintiff  had  pur- 
chased the  parcel  of  land  in  controversy,  and  held  a  contract  from  Tirrill 
for  its  conveyance  to  himself  upon  payment  of  the  sum  of  $5500 ;  2d,  that 
the  money  was  advanced  by  the  defendant  to  the  plaintiff  as  a  loan,  and 
the  deed  from  the  plaintiff  to  the  defendant  was  given  by  way  of  security 
therefor.  The  report  finds,  '  from  all  the  circumstances  surrounding 
the  transaction,  and  from  the  acts  and  declarations  of  the  parties  at  the 
time,  that  the  plaintiff  believed  and  had  reason  to  believe  '  this  to  be 
the  case. 

"  From  the  whole  case  we  are  satisfied  that  it  was  a  transaction  be- 
tween borrower  and  lender,  and  not  a  real  purchase  of  the  land  by  the 
defendant.  We  are  brought,  then,  to  the  question,  Can  equity  relieve 
in  such  a  case  ? 

"  The  decisions  in  the  courts  of  the  United  States,  and  the  opinions 
declared  by  its  judges,  are  uniform  in  favor  of  the  existence  of  the  power, 
and  the  propriety  of  its  exercise  by  a  court  of  chancery.  Hughes  i\  Ed- 
wards, 9  Wheat.  489;  Sprigg  v.  Bank  of  Mount  Pleasant,  U  Pet.  201,  208; 
Morris  i\  Nixon,  1  How.  118;  Russell  v.  Southard,  12  How.  139;  Taylor 
V.  Luther,  2  Sumner,  228 ;  Flagg  v.  Mann,  id.  486 ;  Jenkins  v.  Eldredge, 
3  Story,  181;  Bentley  v.  Phelps,  2  Wood.  &  M.  426;  Wyman  v.  Babcock, 
2  Curtis  C.  C.  386,  398  ;  s.  c.  19  How.  289.  Although  not  bound  by  the 
authority  of  the  courts  of  the  United  States  in  a  matter  of  this  sort,  still 
we  deem  it  to  be  important  that  uniformity  of  interpretation  and  ad- 
ministration of  both  law  and  equity  should  prevail  in  the  State  and 
federal  courts.  We  are  disposed,  therefore,  to  yield  much  deference  to 
the  decisions  above  referred  to,  and  to  follow  them  unless  we  can  see 
that  they  are  not  supported  by  sound  principles  of  jurisprudence,  or  that 
they  conflict  with  rules  of  law  already  settled  by  the  decisions  of  our 
own  courts. 

"  We  cannot  concur  in  the  doctrine  advanced  in  some  of  the  cases,  that 
the  subsequent  attempt  to  retain  the  property,  and  refusal  to  permit  it  to 
be  redeemed,  constitute  a  fraud  or  breach  of  trust,  which  affords  ground 
of  jurisdiction  and  judicial  interference.  There  can  be  no  fraud  or  legal 
wrong  in  the  breach  of  a  trust  from  which  the   statute   withholds  the 


1  McClain  v.  McClain,  57  Iowa,  167. 
oo\) 


CHAP.    VI.]  STATUTE    OF   FRAUDS.  [§  226. 

for  relief,  on  the  ground  that  the  instrument  is  framed  con- 
trary to  the  intention  of  the  parties  through  mistake,  acci- 

right  of  judicial  recogtiitioii.  Such  conduct  may  sometimes  appear  to 
relate  back,  and  give  character  to  the  original  transaction,  by  showing,  in 
that,  an  express  intent  to  deceive  and  defraud.  But  ordinarily  it  will 
not  be  connected  with  the  original  transaction  otherwise  than  construc- 
tively, or  as  involved  iu  it  as  its  legitimate  consequence  and  natural  fruit. 
In  this  aspect  only  can  we  regard  it  in  the  present  case. 

"  The  decisions  in  the  federal  courts  go  to  the  full  extent  of  affording 
relief,  even  in  the  absence  of  proof  of  express  deceit  or  fraudulent  pur- 
pose at  the  time  of  taking  the  deed,  and  although  the  instrument  of 
defeasance  '  be  omitted  by  design  upon  mutual  confidence  between  the 
parties.'  In  Russell  v.  Southard,  12  How.  139,  148,  it. is  declared  to  be 
the  doctrine  of  the  court,  '  that,  when  it  is  alleged  and  proved  that  a  loan 
on  security  was  really  intended,  and  the  defendant  sets  up  the  loan  as 
payment  of  purchase-money,  and  the  conveyance  as  a  sale,  both  fraud  and 
a  vice  in  the  consideration  are  sufficiently  averred  and  proved  to  require 
a  court  of  equity  to  hold  the  transaction  to  be  a  mortgage.'  The  con- 
clusion of  the  court  was,  '  that  the  transaction  was  in  substance  a  loan  of 
money  upon  security  of  the  farm,  and,  being  so,  a  court  of  equity  is 
bound  to  look  through  the  forms  in  which  the  contrivance  of  the  lender 
has  enveloped  it,  and  declare  the  conveyance  of  the  land  to  be  a  mortgage.' 

"  This  doctrine  is  analogous,  if  not  identical,  with  that  which  has  so 
frequently  been  acted  upon  as  to  have  become  a  general  if  not  universal 
rule,  iu  regard  to  conveyances  of  land  where  provision  for  reconveyance  is 
made  in  the  same  or  some  contemporaneous  instrument.  In  such  cases, 
however  carefully  and  explicitly  the  writings  are  made  to  set  forth  a  sale 
with  an  agreement  for  repurchase,  and  to  cut  off  and  renounce  all  right  of 
redemption  or  reconveyance  otherwise,  most  courts  have  allowed  parol 
evidence  of  the  real  nature  of  the  transaction  to  be  given,  and,  upon 
proof  that  the  transaction  was  really  and  essentially  upon  the  footing  of  a 
loan  of  money,  or  an  advance  for  the  accoumiodation  of  the  grantor,  have 
construed  the  instruments  as  constituting  a  mortgage ;  holding  that  any 
clause  or  stipulation  therein,  which  purports  to  deprive  the  borrower  of 
his  equitable  rights  of  redemption,  is  oppression,  against  the  policy  of  the 
law,  and  to  be  set  aside  by  the  courts  as  void.  4  Kent,  Cora.  159  ;  Cruise, 
Dig.  (Greenl.  ed.)  tit.  xv.  c.  1,  §  21 ;  2  Washb.  Real  Prop,  (^d  ed.)  42  ; 
Williams  on  Real  Prop.  353  ;  Story,  Eq.  §  1019  ;  Adams,  Eq.  112  ;  3  Lead. 
Cas.  in  Eq.  (3d  Am.  ed.);  White  &  Tudor's  notes  to  Thornbrough  v. 
Baker,  pp.  005  [*874]  et  seq. ;  Ilare  &  Wallace's  notes  to  s.  c  pp.  624 
[*894]  et  seq. 

"  The  rule  has  been  frequently  recognized  in  Massachusetts,  where,  until 
1855,  the  courts  have  held  their  jurisdiction  of  foreclosure  and  redemption 
of  mortgages  to  be  limited  to  cases  of  a  defeasance  coutaiued  in  the  deed 

331 


§  226.]  CONSTRUCTIVE   TRUSTS.  [CIIAP.   VI. 

dont,  surprise,  or  fraud,  in  such  case,  Lord  Hardwicke  said 
"that  a  mistake  could  never  be  proved  but   by  parol  evi- 

or  some  other  instrument  under  seal.  Erskine  v.  Townsend,  2  Mass.  493 ; 
Killeran  v.  JJrown,  4  Mass.  443;  Taylor  v.  Weld,  5  Mass.  109;  Carey  v. 
liawson,  8  Mass.  159  ;  Parks  v.  Hall,  2  Pick.  206,  211  ;  Rice  v.  Rice, 
4  Pick.  349  ;  Flagg  v.  Mauu,  14  Pick.  4G7,  478 ;  Eatou  v.  Green,  22  I'ick. 
52G.  The  case  of  Flagg  v.  Maun  is  explicit,  not  only  upon  the  authoi'ity 
of  the  court  thus  to  deal  with  the  written  instruments  of  the  parties,  but 
also  upon  the  point  of  the  competency  of  parol  testimony  to  establish  the 
facts  by  which  to  control  their  operation  ;  although,  upon  consideration  of 
the  parol  testimony  in  that  case,  the  court  came  to  the  conclusion  that 
there  was  a  sale  in  fact  and  not  a  mere  security  for  a  loan. 

"  By  the  statute  of  1855,  c.  194,  §  1,  jurisdiction  was  given  to  this  court 
in  equity  '  in  all  cases  of  fraud,  and  of  conveyances  or  transfers  of  real 
estate  in  the  nature  of  mortgages.'  Gen.  Sts.  c.  113,  §  2.  The  authority 
of  the  courts  under  this  clause  is  ample.  It  is  limited  only  by  those  con- 
siderations which  guide  courts  of  full  chancery  powers  in  the  exercise  of 
all  those  powers. 

"If,  then,  the  advantage  taken  of  the  borrower  by  the  lender,  in  re- 
quiring of  him  an  agreement  that  he  will  forego  all  right  of  redemption 
in  case  of  non-payment  at  the  stipulated  time,  or  an  absolute  deed  with 
a  bond  or  certificate  back,  which  falsely  recites  the  character  of  the  trans- 
action, representing  it  to  be  a  sale  of  the  land  with  a  privilege  of  repur- 
chase, be  a  sufficient  ground  for  interference  in  equity  by  restricting  the 
operation  of  the  deed,  and  converting  the  writings  into  a  mortgage,  con- 
trary to  the  expressed  agreement,  it  is  difficult  to  see  why  the  court  may 
not  and  ought  not  to  interpose  to  defeat  the  same  wrong,  when  it  attempts 
to  reach  its  object  by  the  simpler  process  of  an  absolute  deed  alone.  In 
each  case  the  relief  is  contrary  to  the  terms  of  the  written  agreement.  In 
one  case  it  is  against  the  express  words  of  the  instrument  or  clause  relied 
on  as  a  defeasance,  on  the  ground  that  it  was  oppressive  and  wrongful  to 
withhold  or  omit  the  formal  defeasance.  In  strictness,  there  is  no  de- 
feasance in  either  case.  The  wrong  on  the  part  of  the  lender  or  grantor, 
which  gives  the  court  its  power  over  his  deed,  is  the  same  in  both.  '  For 
they  who  take  a  conveyance  as  a  mortgage  without  any  defeasance  are 
guilty  of  a  fraud.'  Cotterell  v.  Purchase,  Cas.  temp.  Talbot,  61.  See 
also  Barnhart  v.  Greenshields,  9  Moore,  P.  C.  18 ;  Baker  v.  Wind,  1  Ves. 
Sen.  160 ;  Mahlor  v.  Lees,  2  Atk.  494 ;  Williams  v.  Owen,  5  Myl.  &  Cr. 
303  ;  Lincoln  v.  Wright,  4  De  Gex  &  Jones,  16. 

"  As  a  question  of  evidence,  the  principle  is  the  same.  In  either  case 
the  parol  evidence  is  admitted,  not  to  vary,  add  to,  or  contradict  the  writ- 
ings, but  to  establish  the  fact  of  an  inherent  fault  in  the  transaction  or 
its  consideration,  which  affords  ground  for  avoiding  the  effect  of  the 
writings  by  restricting  their  operation,  or  defeating  them  altogether. 
332 


CHAP.    VI.]  STATUTE    OF   FRAUDS.  [§  226. 

dcnce,  consequently  it  must  be  received."^  But  ^vhere 
through  mistake  of  law,  or  carelessness  or  inattention,  an 

This  i.s  a  general  principle  of  evidence,  well  e.stablishcd  and  recognized, 
both  at  law  and  in  equity.  (Stackpole  v.  Arnold,  11  Mass.  27;  Fletcher 
V.  Willard,  14  Pick.  40 1 ;  1  Greenl.   Ev.  §  284  ;  Perry  on  Trusts,  §  226. 

'•  The  reasons  for  extending  the  doctrine,  in  equity,  to  ab.solute  deeds, 
whi-re  there  is  no  provision  for  reconveyance,  are  ably  presented  by  Hare 
&  Wallace  in  their  notes  to  WooUam  v.  Ilearne,  2  Lead.  Cas.  in  Eq.  (od 
Am.  ed.)  670,  and  to  Thornbrough  v.  Baker,  3  id.  024.  See  also  Adams 
Eq.  Ill  ;  1  Sugd.  Vend.  (8th  Am.  ed.),  Perkins's  notes,  pp.  207,  288,302, 
303.  The  doctrine  thus  extended  is  declared,  in  numerous  decisions,  to 
prevail  in  New  York ;  also  in  Vermont  and  several  other  States.  !Mr. 
Washburn,  in  his  chapter  on  mortgages,  §  1,  has  exhibited  the  law  as  held 
in  the  different  States,  in  this  particular;  and  the  numerous  references 
there  made,  as  well  as  by  the  annotators  in  the  other  treatises  which  we 
have  cited,  render  it  superfluous  to  repeat  them  here.  2  Washb.  Ileal 
Prop.  (3d  ed.)  35  et  seq. 

"  Upon  the  whole,  we  are  convinced  that  the  doctrine  may  be  adopted 
without  violation  of  the  statute  of  frauds,  or  of  any  principle  of  law  or 
evidence  ;  and,  if  properly  guarded  in  administration,  may  prove  a  sound 
and  salutary  principle  of  equity  jurisi^rudence.  It  is  a  power  to  be  exer- 
cised with  the  utmost  caution,  and  only  when  the  grounds  of  interference 
are  fully  made  out,  so  as  to  be  clear  from  doubt. 

"  It  is  not  enough  tliat  the  relation  of  borrower  and  lender,  or  debtor 
and  creditor,  existed  at  the  time  the  transaction  was  entered  upon.  Ne- 
gotiations, begun  with  a  view  to  a  loan  or  security  for  a  debt,  may  fairly 
terminate  in  a  sale  of  the  property  originally  proposed  for  security.  And 
if,  without  fraud,  oppression,  or  unfair  advantage  taken,  a  sale  is  the  real 
result,  and  not  a  form  adopted  as  a  cover  or  pretext,  it  should  be  sus- 
tained by  the  court.  It  is  to  the  determination  of  this  question  that  the 
parol  evidence  is  mainly  directed. 

"  The  chief  inquiry  is,  in  most  cases,  whether  a  debt  was  created  by  the 
transaction,  or  an  existing  debt,  which  formed  or  entered  into  the  consid- 
eration, continued  and  kept  alive  afterwards.     '  If  the  purchaser,  instead 


1  Baker  v.  Paine,  1  Ves.  457;  Towers  v.  Moor,  2  Vern.  98;  Langley  v. 
Brown,  2  Atk.  203 ;  Townshend  v.  Stangroom,  6  Ves.  328  ;  Taylor  v. 
Radd,  5  Ves.  595,  596,  n.;  Ilenkle  v.  Royal  Ins.  Co.,  1  Ves.  318;  Rogers 
V.  Earl,  1  Dick.  294;  Barstow  v.  Kilvington,  5  Ves.  593;  Hunt  v.  llous- 
manier,  8  Wheat.  174;  Gower  v.  Sternes,  2  Whart.  75;  Keisselbrock  v. 
Livingston,  4  Johns.  Ch.  144  ;  Peterson  v.  Grover,  20  Maine,  363 ;  New- 
son  ('.  Bufferlow,  1  Dev.  Eq.  379;  Goodell  v.  Freed,  15  Vt.  448;  Harrison 
V.  Howard,  1  Ired.  Eq.  407;  Blanchard  v.  Moore,  4  J.  J.  Marsh.  471; 
Perry  v.  Pearson,  1  Humph.  431. 

333 


§  226.]  CONSTRUCTIVE   TRUSTS.  [CIIAP.   VI. 

important  provision  is  omitted  from  a  deed,  and  no  fraud  is 
charged  or  proved,  parol  evidence  cannot  be  received  against 

of  taking  the  risk  of  the  subject  of  the  contract  on  himself,  takes  a  secur- 
ity for  repayment  of  the  principal,  that  will  not  vitiate  the  transaction,  and 
render  it  a  mortgage  security.'  1  Sugd.  Vend.  (8th  Am.  ed.)  ;302,  in 
support  of  which  the  citations  by  Mr.  Perkins  are  numerous.  But  any 
recognition  of  the  debt  as  still  subsisting,  if  clearly  established,  is  equally 
efficacious  ;  as  the  receipt  or  demand  of  interest  or  part  payment.  Eaton 
t'.  Green,  22  Tick.  526,  530. 

"  Although  proof  of  the  existence  and  continuance  of  the  debt,  for 
which  the  conveyance  was  made,  if  not  decisive  of  the  character  of  the 
transaction  as  a  mortgage,  is  most  influential  to  that  effect,  yet  the  ab- 
sence of  such  proof  is  far  from  being  conclusive  to  the  contrary.  Rice  v. 
Rice,  4  Pick.  349;  Flagg  v.  Mann,  14  Pick.  467,  478;  Russell  v.  South- 
ard, 12  How.  139  ;  Browne  r.  Dewey,  1  Sandf.  Ch.  56.  When  it  is  con- 
sidered  that  the  inquiry  itself  is  supposed  to  be  made  necessary  by  the 
adoption  of  forms  and  outward  appearance  differing  from  the  reality,  it 
is  hardly  reasonable  that  the  absence  of  an  actual  debt,  manifested  by  a 
written  acknowledgment  or  an  express  promise  to  pay,  should  be  regarded 
as  of  more  significance  than  the  absence  of  a  formal  defeasance.  It  of 
course  compels  the  party  attempting  to  impeach  the  deed,  to  make  out  his 
proofs  by  other  and  less  decisive  means.  But  as  an  affirmative  proposition 
it  cannot  have  much  force. 

"  A  mortgage  may  exist  without  any  debt  or  other  personal  liability  of 
the  mortgagor.  If  there  is  a  large  margin  between  the  debt  or  sum  ad- 
vanced and  the  value  of  the  land  conveyed,  that  of  itself  is  an  assurance 
of  payment  stronger  than  any  promise  or  bond  of  a  necessitous  borrower 
or  debtor.  Hence  inadequacy  of  price,  in  such  case,  becomes  an  impor- 
tant element  in  establishing  the  character  of  the  transaction.  Inadequacy 
of  price,  though  not  of  itself  alone  sufficient  ground  to  set  in  motion 
chancery  powers  of  the  court,  may  nevertheless  properly  be  effective  to 
quicken  their  exercise,  where  other  sufficient  ground  exists :  Story,  Eq. 
§§  239,  245,  246;  and  in  connection  with  other  evidence  may  afford  strong 
ground  of  inference  that  the  transaction  purporting  to  be  a  sale  was  not 
fairly  and  in  reality  so.  Kerr  on  Fraud  and  Mistake,  186  and  note; 
Wharf  i;.  Howell,  5  Binn.  499. 

"  Another  circumstance  that  may  and  ought  to  have  much  weight  is 
the  continuance  of  the  grantor  in  the  use  and  occupation  of  the  land  as 
owner,  after  the  apparent  sale  and  conveyance.  Cotterell  v.  Purchase, 
Cas.  temp.  Talbot,  61 ;  Lincoln  v.  Wright,  4  De  Gex  &  Jones,  16. 

"  These  several  considerations  have  more  or  less  weight,  according  to 

the  circumstances  of  each  case.     Conway  v.  Alexander,  7  Cranch,  218  ; 

Bentley  v.  Phelps,  2  Wood.  &  M.  426.     It  is  not  necessary  that  all  should 

concur  to  the  same  result  in  any  case.     Each  case  must  be  determined 

334 


CHAP.   VI.]  STATUTE   OF   FKAUDS.  [§  227. 

the  denial  of  the  defendant  in  his  answer  to  reform,  vary,  or 
defeat  the  instrument'  Parol  evidence,  however,  is  not 
favorably  received  Ijy  courts  in  any  case,  and  they  will  not 
act  upon  it  against  written  instruments,  unless  it  is  exceed- 
ingly clear  and  certain,  and  uncontradicted  by  other  cvi- 
dence,^  In  Pennsylvania,  however,  a  different  rule  prevails, 
and  parol  evidence  of  the  verbal  agreements  and  stipulations 
upon  the  faith  of  which  the  contract  was  made,  is  received  in 
evidence  to  control  its  operation  or  to  explain  its  meaning.^ 

§  227.  The  right  of  a  party  who  has  been  defrauded  of  the 
title  to  his  land  is  not  a  mere  right  of  action  to  set  the  deed 
aside,  but  it  is  an  equitable  estate  in  the  land  itself,  which 
may  be   sold,    assigned,    conveyed,    and    devised.*     In    the 

upon  its  own  special  facts  ;  but  those  should  be  of  clear  and  decisive  im- 
I)ort."  So,  if  it  is  necessarj'  for  an  absolute  grantee  to  come  into  a  court 
of  equity  for  relief,  as  for  a  loss  of  the  deeds,  the  court  can  compel  him  to 
do  equity,  as  to  make  a  settlement  upon  parties  entitled  to  a  settlement  by 
parol  understanding.     Phillips  v.  Pliillips,  50  Mo.  G03. 

1  Lemon  v.  Whitely,  4  Russ.  42:5 ;  Irnhain  v.  Child,  1  Bro.  Ch.  92 ; 
Portmore  v.  Morris,  2  id.  219;  Rich  r.  Jackson,  4  id.  614  ;  6  Yes.  334, 
n.  ;  Jackson  v.  Cator,  5  Yes.  688  ;  Hare  v.  Sherwood,  1  Yes.  Jr.  241 ; 
Anon.  Skin.  159  ;  Mortimer  v.  Shortall,  2  Dr.  &  W.  363  ;  Alexander 
V.  Crosbie,  Llo.  &  Go.  145  ;  London  R.  Co.  v.  Winter,  1  Cr.  &  Phil.  57  ; 
Garwood  v.  Eldridge,  1  Green,  Ch.  146;  Lyon  v.  Richmond,  2  Johns. 
Ch.  60;  Wheaton  v.  Wheatou,  9  Conn.  96;  Hunt  v.  Rousinanier,  1  Pet. 
1 ;  Parkhurst  v.  Yan  Cortlandt,  1  Johns.  Ch.  282 ;  Westbrook  r.  Harbe- 
son,  2  McCord,  Ch.  112  ;  Dwight  v.  Pomroy,  17  Mass.  303  ;  Robson  v. 
Harwell,  6  Ga.  589  ;  Chamness  v.  Crutchfield,  2  Ired.  Eq.  14S ;  Movan 
V.  Hayes,  1  Johns.  Ch.  339;  RatclLff  v.  Ellison,  3  Rand.  537;  Richardson 
V.  Thompson,  1  Humph.  151. 

2  Barrow  v.  Greenhough,  3  Yes.  154  ;  Townshend  v.  Stangroom,  6  Yes. 
334  ;  Shelborne  v.  Inchinquin,  1  Bro.  Ch.  341  ;  Miller  v.  Cotten,  5  Ga. 
346.  See  the  whole  matter  elaborately  discussed  and  all  the  authorities 
collected  in  notes  to  WooUam  v.  Ilearne,  2  Lead.  Cas.  Eq.  084  ;  Barkley 
V.  Lane,  6  Bush,  58 ;  Collier  v.  Collier,  30  Ind.  32 ;  Lingenfitter  v.  Rich- 
ings,  62  Penn.  St.  128. 

8  Chalfant  v.  Williams,  35  Penn.  St.  212 ;  Clark  v.  Partridge,  2  Barr, 
13 ;  4  Barr,  166 ;  Oliver  v.  Oliver,  4  Rawle,  141  ;  Rearich  r.  Swiuehart, 
1  Jones,  238 ;  Christ  v.  Diffenbach,  1  Serg.  &  R.  464. 

4  Stump  V.  Gaby,  2  De  G.,  M.  &  G.  623 ;  McKissick  v.  Pickle,  4  Har- 
ris, 140 ;  Kane  County  i;.  Herriugton,  50  111.  232. 

335 


§  228.]  CONSTRUCTIVE   TRUSTS.  [CHAP,    VI. 

view  of  a  court  of  equity,  he  is  still  the  owner  of  the  estate, 
subject  to  repay  whatever  money  or  other  property  he  may 
have  received  from  the  fraudulent  grantee.  And  so  the 
equitable  interest  of  a  purchaser  under  a  contract  of  sale  is 
of  that  character  that  it  may  be  assigned  or  devised.^ 

§  228.  Time  does  not  bar  a  direct  trust  where  the  relation 
of  trustee  and  cestui  que  trust  is  admitted  to  exist,  but  dili- 
gence must  be  used  to  establish  a  constructive  trust  on  the 
ground  of  fraud.  A  court  of  equity  will  refuse  its  aid  to 
stale  demands,  where  a  party  has  slept  upon  his  rights,  or 
has  acquiesced  for  a  great  length  of  time.^  And  so  a  con- 
structive trust  will  be  barred  by  long  acquiescence,  although 
the  fraud  was  evident  and  the  relief  was  originally  clear. ^ 

1  Stump  V.  Gaby,  2  De  G.,  M.  &  G.  623 ;  Morgan  v.  Halford,  1  Sm.  & 
Gif.  101 ;  Cogswell  v.  Cogswell,  2  Edw.  Ch.  231  ;  Malin  v.  Malin,  1  Wend. 
625;  Clapper  v.  House,  6  Paige,  149  ;  Kent  v.  Mehaffey,  10  Ohio  St.  204. 

2  Smith  V.  Clay,  3  Bro.  Ch.  639,  n.  ;  Cholmondeley  v.  Clinton,  IJ.  & 
W.  151;  Chalmer  v.  Bradley,  id.  59  ;  Beckford  v.  Wade,  17  Ves.  97;  Port- 
lock  V.  Gardner.  1  Hare,  594  ;  Hawley  v.  Cramer,  4  Cow.  117;  Dobson  v. 
Kacey,  3  Sandf.  Ch.  61 ;  Powell  v.  Murray,  2  Edw.  Ch.  644  ;  10  Paige,  256; 
Piatt  V.  Yatier,  9  Pet.  405  ;  McKnight  v.  Taylor,  1  How.  161  ;  Wagner  i'. 
Baird,  7  How.  234  ;  Veasie  v.  ^Villiams,  8  How.  134 ;  Hallett  v.  Collins, 
10  How.  174;  Hough  v.  Richardson,  3  Story,  659;  Gould  v.  Gould, 
3  Story,  516 ;  Peebles  v.  Reading,  8  Serg.  &  R.  484 ;  Irvine  v.  Robertson, 
3  Rand.  549  ;  Colman  u.  Lyne,  4  Rand.  454 ;  Anderson  v.  Burchell,  6  Grat. 
405 ;  2  Story's  Eq.  Jur.  §  1520,  notes. 

8  Bonny  v.  Ridgard,  cited  4  Bro.  Ch.  138 ;  Andrew  v.  Wrigley,  4  Bro. 
Ch.  124;  Blennerhassett  v.  Day,  2  B.  &  B.  118;  Gregory  v.  Gregory, 
Cowp.  201;  Jac.  631;  Selsey  v.  Rhoades,  1  Bligh  (n.  s.),  1;  Champion 
V.  Rigby,  1  R.  &  M.  539;  Ex  parte  Granger,  2  Deac.  &  Ch.  459  ;  Collard 
V.  Hare,  2  R.  &  M.  675;  Norris  v.  Xeve,  3  Atk.  38;  Pryce  v.  Byrn,  5  Yes. 
681,  cited  Campbell  v.  Campbell,  id.  678,  682  ;  Mor,se  v.  Royal,  12  Yes. 
355;  Medlicott  v.  O'Donnell,  1  B.  &  B.  156;  Hatfield  v.  Montgomery, 
2  Porter,  58 ;  Bond  v.  Brown,  1  Harp.  Eq.  270 ;  Edwards  v.  Roberts,  7  Sm. 
&  M.  544;  Peacock  v.  Black,  Halst.  Eq.  535 ;  Steele  v.  Kinkle,  3  Ala.  352; 
Smith  V.  Clay,  Amb.  645 ;  Bond  v.  Hopkins,  1  Sch.  &  Lef.  413 ;  Hoven- 
den  V.  Annesley,  2  Sch.  &  Lef.  630-640 ;  Stackhouse  v.  Barnston,  10  Yes. 
466;  Ex  parte  Dewdney,  15  Yes.  496;  Kane  v.  Bloodgood,  7  Johns.  Ch. 
93  ;  Dexter  v.  Arnold,  3  Sumn.  152  ;  Decouche  v.  Savetier,  3  Jolms.  Ch. 
190;  Murray  v.  Coster,  20  Johns.  576;  Prevost  v.  Gratz,  6  Wheat.  481; 
Hughes  V.  Edwards,  9  Wheat.  489  ;  Elmendorf  v.  Taylor,  10  Wheat.  168} 
336 


CHAP.   VI.]  STATUTE   OF  FRAUDS.  [§  229. 

It  is  difTicult  to  state  as  a  general  proposition  what  lengtli 
of  time  will  bar  relief  frcjiu  the  cunsequeueca  of  a  fraud.  It 
is  necessarily  subject  to  the  ccjuitable  discretion  of  the 
court,  and  must  depend  upon  the  nature  of  each  case  and 
the  circumstances  of  tlie  parties. 

§  229.  Therefore  no  certain  time  can  be  stated  as  a  limit 
beyond  wliich  relief  will  not  be  given.  In  several  cases 
twenty  years  has  been  held  to  be  a  bar ; '  and  so  where  one 
had  acquiesced  for  twenty-five  years,^  and  twenty-one  years,^ 
and  in  another  case  the  lapse  of  eighteen  years  was  held  to 
be  a  bar.^  So  a  delay  of  thirty  years,^  of  thirty-eight  years, "^ 
of  forty-six  years  J  of  fifty  years,**  of  twenty-seven  years,  ^  and 
of  seventeen  ycars,*^has  been  held  to  be  such  laches,  if  unex- 

Miller  v.  IMcIntire,  6  Pet.  61 ;  Sherwood  v.  Sutton,  5  Mason,  143  ;  Wil- 
liams V.  First  Pres.  Soc,  1  Ohio  St.  478. 

1  Smith  V.  Clay,  3  Bro.  Ch.  639,  n.  ;  Ilovenden  v.  Annesley,  2  Sch.  & 
Lef.  636;  Stackhouse  v.  Barnston,  10  Ves.  466;  Pryce  i'.  Byrn,  5  Ves. 
681 ;  "Ward  v.  Van  Bokkelen,  1  Paige,  100  ;  Thompson  v.  Blair,  3  :\Iurph. 
593;  Farr  v.  Farr,  1  Hill,  Eq.  391 ;  Field  v.  Wilson,  6  B.  Mon.  479;  Bruce 
V.  Child,  4  Hawks,  372  ;  Perry  v.  Craig,  3  Miss.  525  ;  Ferris  v.  Henderson, 
12  Penn.  vSt.  54;  Bank  of  U.  S.  v.  Biddle,  2  Pars.  Eq.  31  ;  Walker  v. 
Walker,  16  Serg.  &  It.  379  ;  McDowell  v.  Goldsmith,  2  Md.  Ch.  370 ; 
Norris's  App.,  71  Penn.  St.  124.  In  Paschall  v.  Hinderer,  28  Ohio  St. 
568,  it  is  said  :  The  statute  does  not  apply  in  equity  to  bar  a  trust  except 
in  three  classes  of  cases:  first,  where  there  is  a  concurrent  remedy  at  law 
to  which  there  is  a  fixed  limitation  ;  second,  where  there  is  an  open  denial 
of  the  trust,  with  notice  which  requires  action  by  the  cestui  qxie  (rusf.  and 
afterwards  a  lapse  of  time  which  would  amount  to  a  bar  in  law  ;  and  third, 
where  there  are  circumstances  shown  which  with  lapse  of  time  raise  a  pre- 
sumption that  the  trust  has  been  extinguished. 

2  Blennerhassett  v.  Day,  2  B.  &  B.  118. 
'  Selsey  v-  Ithoades,  1   Bligh  (x.  s.),  1. 

*  Gregory  »'•  Gregory,  Coop.  201;  Jac.  631  ;  Champion  r.  Rigby,  1  R. 
&  M.  539  ;  Roberts  v.  Tunstall,  4  Hare,  257. 

6  Harrod  i'.  Fountleroy,  3  J.  J.  Marsh.  548 ;  Phillips  v.  Belden, 
2  Edw.  Ch.  1;  Page  v.  Booth,  1  Rob.  Va.  161  ;  Bond  v.  Brown,  Harp. 
Eq.  270.  8  Powell  v.  Murray,  10  Paige,  256. 

^  Maxwell  v.  Kennedy,  8  How.  210. 

®  Anderson  v.  Barwell,  6  Grat.  405. 

»  Hayes  v.  Goode,  7  Ivcigh,  486. 

10  Baker  v.  Read,  18  Beav.  398;  Emerick  v.  Emerick,  3  Grant.  295. 
VOL.  I.  — 22  337 


§  229.]  CONSTRUCTIVE   TRUSTS.  [CIIAP.    VI. 

plained,  as  would  be  a  bar  to  a  bill  for  relief.  Under  the 
circumstances  of  other  cases,  a  delay  of  twelve  years,  ^  of 
eleven  years,^  of  eighteen  years,  was  held  to  be  no  l)ar.3  In 
Michoud  V.  Girod  the  law  was  elaborately  examined  and 
stated  by  Mr.  Justice  Wayne  as  follows,  "that  within  what 
time  a  constructive  trust  will  be  barred  must  depend  upon 
the  circumstances  of  the  casc.^  There  is  no  rule  in  equity 
which  excludes  the  consideration  of  circumstances,  and  in 
a  case  of  actual  fraud,  we  believe  no  case  can  be  found  in 
the  books  in  which  a  court  of  equity  has  refused  to  give 
relief  within  the  lifetime  of  either  of  the  parties  upon  whom 
the  fraud  is  proved,  or  within  thirty  years  after  it  has  been 
discovered  or  becomes  known  to  the  party  whose  rights  are 
affected  by  it."^  If  there  is  no  fraud  chargeable  on  any 
party,  but  a  simple  mistake  or  accident  is  made  by  which  a 
title  is  changed,  more  diligence  is  required,  and  acquies- 
cence for  a  less  time  will  bar  the  suffering  party  of  his  relief. 
An  acquiescence  for  seventeen  years, "^  or  for  nineteen  years,' 
has  been  held  to  be  fatal  to  an  application  for  relief.  But 
where  trustees  without  actual  fraud  conveyed  to  themselves, 
a  sleeping  on  their  rights  for  five  years  after  knowing  of  the 

1  Butler  r.  Haskell,  4  Des.  651;  Newman  v.  Early,  3  Tenn.  Ch.  714. 

2  Rhinlander  v.  Barrow,  17  Johns.  Ch.  538 ;  Mulhallen  v.  Marum,  3  Dr. 
&  W.  317. 

8  Bell  V.  Webb,  2  Gill,  263  ;  Grisby  v.  Mousley,  4  De  G.  &  J.  78. 

4  Boone  v.  Chiles,  10  Pet.  177;  Trafford  i-.  Wilkinson,  3  Tenn.  Ch.  701. 

5  Michoud  ;'.  Girod,  4  How.  561;  Trevelyan  v.  Charter,  11  CI.  &  Fin. 
714  ;  Pyrn  v.  Byrne,  5  Ves.  681 ;  Malony  v.  L'Estrange,  Beat.  406 ;  Car- 
penter r.  Canal  Co.,  35  Ohio  St.  307.  Lapse  of  time  is  no  bar  to  a  trust 
clearly  established  ;  and  in  cases  where  fraud  is  imputed  and  proved,  length 
of  time  ought  not,  upon  principles  of  eternal  justice,  to  be  admitted  to  re- 
pel relief.  On  the  contrary,  it  would  seem  that  the  length  of  time  during 
which  the  fraud  has  been  successful  is  rather  an  aggravation,  and  calls 
more  loudly  for  decisive  and  ample  relief.  Per  Story,  J.,  in  Prevost  v. 
Gratz,  6  Wheat.  481.  In  this  case  forty  years  and  the  death  of  all  the 
parties  was  held  sufficient  to  warrant  the  .presumption  of  the  dis- 
charge and  extinguishment  of  a  trust,  proved  to  have  existed  by  strong 
circumstances. 

6  Hite  V.  Hite,  1  B.  Mon.  177  ;  Emerick  r.  Emerick,  3  Grant,  295. 
'  Bruce  v.  Child,  4  Hawks,  372. 

338 


CHAP.    VI.]  LACHES.  [§  230. 

transaction  was  held  not  to  bar  the  cestuis,  the  court  intimat- 
ing that  where  no  conduct  of  the  cestuia  indicated  acfjuies- 
conce,  mere  delay  for  less  time  than  twenty  years  would  not 
alTcctthem.'  Where  there  are  two  remedies,  pursuing  one 
first  and  waiting  till  it  has  run  its  course  before  making 
trial  of  the  other  is  not  laches.^ 

§  230.  The  statute  of  limitations  is  not  necessarily  con- 
trolling, as  to  the  time  within  Avhich  relief  is  to  be  sought, 
in  the  case  of  a  constructive  trust  by  reason  of  fraud.  A 
demand  may  be  stale,  and  not  entitled  to  relief  under  the 
circumstances  of  the  case,  although  much  less  than  the  time 
allowed  by  the  statute  of  limitations  has  elapsed;  and  so  a 
I)arty  may  be  entitled  to  relief  although  much  more  than  the 
statute  limit  has  gone  by.^  In  some  States,  however,  the 
statute  is  applied  to  constructive  trusts,  unless  they  are  con- 
cealed or  undiscovered.  In  such  States,  relief  must  l)e  sought 
within  six  years  if  it  is  sought  by  bill  in  equity  to  set  aside 
a  deed,  or  to  establish  a  trust.^  In  Pennsylvania,  the  limit 
is  five  years.  ^  In  other  States,  it  has  been  decided  in  analogy 
to  the  statute  which  bars  a  real  action  after  twenty  years, 
that  relief  must  be  sought  within  the  twenty  years  named  in 
the  statute.^  In  South  Carolina,  it  is  held  that  an  action  to 
set  aside  a  deed  as  fraudulent  is  equivalent  to  an  action  for 
deceit,  and  must  be  brought  within  the  limit  of  the  statute 
for  personal  actions.'     But  if  the  fraud  is  unknown  to  the 

1  Morse  v.  Hill,  136  Mass.  00,  06,  and  cases  cited. 

2  IJIake  /•.  Traders'  Nat'l  Hk.,  145  IMass.  13,  17. 

8  Mason  r.  Crosby,  1  Wood.  &  M.  342;  Piatt  v.  Vatier,  1  McLean,  146; 
9  Pet.  40.);  Juzan  r.  Toulmin,  9  Ala.  66'2. 

*  Farnhani  ;•.  Brooks,  9  Pick.  212;  Sears  v.  Shafer,  2  Seld.  208;  Wil- 
liamson r.  Field,  2  Saiidf.  Ch.  534 ;  Pilcher  r.  Fliiin,  30  Md.  202. 

6  Miller  r.  Franciscus.  40  Pcnu.  St.  335 ;  Rider  r.  Maul,  40  Penn.  St 
376;  Asluirst,  App.  00  id.  290. 

«  Ward  r.  Van  Bokkelen,  1  Paige,  100;  Walker  v.  Walker.  16  Serg. 
&  P.  379;  Ferris  v.  Henderson,  12  Penn.  St.  54;  Bank  of  U.  S.  r.  Biddle, 
2  Pars.  Eq.  31;  Thompson  v.  Blair,  3  IMurph.  .593;  Farr  ,:  Farr,  1  Hill, 
Eq,  391;  Perry  r.  Craig.  3  Miss.  525;  Field  '•.  Wilson,  6  B.  Men.  479; 
Bruce  r.  Child,  4  Hawks,  372  ;  IMcDowel  r.  Goldsmith,  2  Md.  Ch.  370. 

T  Parkam  r.  McCravy,  6  Rich.  Eq.  143;  McDonald  r.  May,  1  Rich. 
Eq.  91 ;  Bradley  v.  McBride,  Rich.  Eq.  Cas.  202,  is  overruled. 

339 


§  230.]  CONSTKUCTIVE   TRUSTS.  [CHAP.   VI. 

injured  party,  or  is  concealed,  or  he  is  under  disability,  or 
out  of  the  country,  or  the  delay  is  caused  by  the  defendant,^ 
the  lapse  of  time  will  not  be  laches  which  bar  relief.  If  a 
party  has  knowledge  of  the  fraud,  a  want  of  evidence  will 
not  excuse  his  delay,^  nor  will  poverty  and  an  inability  to 
prosecute  the  action.^  If  there  has  been  great  delay,  courts 
will  require  very  clear  evidence  to  impeach  a  transaction  as 
fraudulent,  and  to  convert  the  fraudulent  party  into  a 
trustee.*  So,  if  a  great  length  of  time  has  elapsed,  courts 
will  sometimes  grant  the  relief  prayed  for  by  setting  aside 
the  conveyance,  but  will  decree  an  account  for  only  six 
years,^  or  from  the  time  of  filing  the  bill,^  and  without 
costs.  ^ 

1  Sears  v.  Shafer,  2  Seld.  268;  Richardson  v.  Jones,  3  G.  &  J.  163; 
Doggett  V.  Emerson,  3  Story,  700;  Callender  v.  Calgrove,  17  Conn.  1; 
Phalen  v.  Clarke,  19  Conn.  421 ;  Hallett  v.  Collins,  10  How.  174  ;  Rider  v. 
Bickerton,  3  Swanst.  81,  n. ;  Blennerhassett  v.  Day,  2  B.  &  B.  118  ;  Trevel- 
yan  v.  Charter,  11  CI.  &  Fin.  714;  Bowen  v.  Evans,  2  H.  L.  Cas.  257; 
Warner  c.  Daniels,  1  W.  &  M.  Ill;  Murray  v.  Palmer,  2  Sch.  &  Lef. 
487  ;  Aylewood  v.  Kearney,  2  B.  &  B.  263 ;  Pickett  v.  Loggan,  14  Yes. 
215;  Purcell  v.  McNamara,  id.  91;  Ferris  v.  Henderson,  12  Penn.  St. 
49;  Michoud  v.  Girod,  4  How.  561;  Henry  County  v.  Winnebago,  &c., 
52  111.  299. 

2  Parkam  v.  McCravy,  6  Rich.  Eq.  114. 

8  Roberts  v.  Tunstall,  4  Hare,  357  ;  Maxwell  v.  Kennedy,  8  How.  210 ; 
Locke  V.  Armstrong,  2  Dev.  &  Bat.  147;  Perry  v.  Craig,  3  Miss.  516. 

4  Chalmers  v.  Bradley,  1  J.  &  W.  59  ;  Powell  v.  Murray,  10  Paige, 
256;  Bowen  v.  Evans,  2  H.  L.  Cas.  257;  Westbrook  v.  Harwell,  2  McCord, 
Eq.  112  ;  Phillips  v.  Belden,  2  Edw.  Ch.  1  ;  Jennings  i'.  Broughton,  3  De 
G.,  M.  &  G.  126;  Chandos  v.  Brownlow,  2  Ridg.  P.  C.  397;  Montgomery 
V.  Hobson,  Meigs,  437;  Page  r.  Booth,  1  Rob.  161. 

^  Pearce  v.  Newlyn,  3  Madd.  189. 

«  Pickett  i\  Loggan,  14  Ves.  215 ;  Malony  v.  L'Estrange,  Beatt.  406 ; 
Mulhallen  v.  Marum,  3  Dr.  &  W.  317. 

■^  Pearce  v.  Newlyn,  3  Madd.  189 ;  Att.  Gen.  v.  Dudley,  Coop.  146. 


340 


CIIAl'.    VII.]       TRUSTS    BY    EQUITABLE    CONSTRUCTION.  [§  231. 


CHAPTER   VII. 

TRUSTS   THAT   ARISE   BY    EQUITABLE   CONSTRUCTION    IN   THE 
ABSENCE   OF   FRAUD. 

§2.51.     Trust  by  erjuitablc  construction.     Illustration. 

§  232.     ^'eIlclor's  lien  for  the  ijurchase-mouey  of  this  description.     States  in 
which  it  exists. 

§  233.  Tliis  lien  does  not  contravene  the  statute  of  frauds. 

§  2.'54.  The  nature  of  tlie  interest  of  the  vendor  under  this  lien. 

§§  235-237.     When  the  lien  exists  and  wiien  not. 
§§  238,  239.    The  parties  between  whom  tiie  lien  exists. 

§  240.     Trust  by  construction  wliere  a  conveyance  is  made  that  cannot  operate 
at  law. 

§  241.     Constructive  trust  where  trust  property  is  transferred  by  gift  from  the 
trustee. 

§  242.     Constructive  trust  where  a  corporation  distributes  its  capital  stock  with- 
out paying  its  debts. 

§  243.     A  person  holding  tlie  legal  title  as  security  is  a  constructive  trustee. 

§  244.     Executor  indebted  to  the  testator's  estate  is  a  constructive  trustee. 

§  245.     A  per.-ion  may  become  a  trustee  de  son  tort  by  construction. 

§  246.     An  agent  may  become  a  constructive  trustee. 

§  247.     A  person  holding  deeds  or  papers  or  property  belonging  to  another  may 
be  a  constructive  trustee. 

§  246  a.  Other  equitable  trusts.     See  §  247  a. 

§  281.  It  frequently  happens  that  courts  of  equity  construe 
a  trust  to  arise  from  the  contracts  and  dealings  of  j)ai-ties, 
although  a  trust  is  not  within  their  contemplation,  and  there 
is  no  fraud,  actual  or  constructive.  In  this  respect,  courts 
of  equity  proceed  in  a  manner  and  upon  princi])les  entirely 
unknown  to  courts  of  law.  Thus,  if  the  intention  of  the 
testator  cannot  be  carried  out  without  api)ointing  a  trustee, 
that  will  be  done. ^  So,  if  ])arties  enter  into  a  valid  contract 
for  tlio  sale  and  conveyance  of  lands,  and  the  vendor  neglects 
or  declines  to  convey,  courts  of  law  can  only  give  the  vendee 
an  action  for  damages  for  a  Itreach  of  the  contract,  but  the 
legal  title  to  the  j)roperty  will  not  be  alTected ;  it  will  still 

1  Quigley  c  (Jridley,  132  Mass.  39,  40. 

341 


§  231.]  TRUSTS    BY    EQUITABLE    CONSTRUCTIOX.       [CIIAr.    VII. 

remain  in  the  vendor.  A  court  of  equity,  however,  looks 
upon  tliat  as  already  done,  which  was  agreed  to  be  done.^ 
From  the  date  of  the  contract  it  looks  upon  the  beneficial 
interest  as  in  the  vendee,  and  the  legal  title  only  as  in  the 
vendor.  By  construction  the  vendor  holds  the  legal  title  in 
trust  for  the  vendee.^  Equity  proceeds,  in  personam^  against 
the  vendor  and  makes  him  a  trustee,  and  then  orders  him  to 
execute  the  trust  by  conveying  the  legal  title  to  the  person 
to  whom  he  has  agreed  to  convey  it.  The  purchaser  is  in 
like  manner  a  trustee  of  the  purchase-money,  and  the  court 
will  order  him  to  pay  it  over,  and  receive  a  conveyance  of 
the  legal  title  to  the  land.^  And,  a  fortiori,  if  the  purchaser 
has  paid  the  purchase-money  the  vendor  becomes  a  mere 
trustee  of  the  legal  title  for  the  purchaser;*  so,  if  the  pur- 
chaser has  paid  part  of  the  purchase-money,  the  vendor 
becomes  a  trustee  to  the  extent  of  the  money  paid.^  If  the 
vendor  does  not  own  the  land,  or  some  part  of  that  which  he 
agrees  to  convey,  and  afterwards  obtains  the  title,  he  will 
immediately  become  a  trustee  for  the  purchaser.  ^  This  equity 
will  not  be  affected  by  the  death  or  bankruptcy  of  either 
party.  If  the  vendor  dies  before  he  has  conveyed  the  land, 
the  legal  title  will  descend  to  his  heirs  subject  to  the  trust; 
and   they  or  his  legal  representatives  will   be   ordered  to 

1  Fonbl.  Eq.  Tr.  B.  1,  c.  6,  §  8. 

2  Wall  V.  Bright,  IJ  .«fe  W.  500  ;  Green  v.  Smith,  1  Atk.  572 ;  Davie  v. 
Beardsham,  1  Ch.  Cas.  39  ;  Atcherley  v.  Vernon,  10  Mod.  518;  McKay  v. 
Carrington,  1  McLean,  50 ;  Crawford  v.  Bertholf,  Saxt.  458 ;  Ten  Eyck 
V.  Simpson,  1  Sandf.  Ch.  244;  Kerr  v.  Day.  14  Penn.  St.  112;  INIoore  v. 
Burrows,  34  Barb.  173  ;  Adams  v.  Green,  id.  176;  Wickman  r.  Robinson, 
14  Wis.  493;  Conway  v.  Kinsworthy,  21  Ark.  9  ;  Dana  v.  Petersham,  107 
Mass.  598  ;  Currie  v.  White,  45  N.  Y.  822;  Reed  v.  Lukens,  44  Penn.  St. 
200;  Lamb  v.  Davenport,  1  Sawyer,  609;  Potter  i\  Jacobs,  111  Mass.  32. 

8  Green  v.  Smith,  1  Atk.  572;  Pollexfen  v.  Moore,  3  Atk.  272;  Dexter 
r.  Stewart,  7  Johns.  Ch.  52. 

*  Waddington  v.  Banks,  1  Brock.  97;  Fenno  v.  Sayre,  3  Ala.  458;  Brown 
V.  East,  5  Mon.  415  ;  Payne  v.  Atterbury,  Harring.  Ch.  414 ;  Neeson  v. 
Clarkson,  4  Hare,  97. 

5  Wythes  v.  Lee,  3  Drew.  396  ;  AVestmacott  v.  Robins,  4  De  G.,  F.  & 
J.  390. 

6  Tyson  i-.  Passmore,  2  Barr,  122  ;  McCall  v.  Coover,  4  Watts  &  S.  151. 

342 


CHAP.  VII.]  vendor's  lien.  [§  232. 

exccuto  tlie  tnist.^  But  tlie  lien  or  trust  will  not  exist 
where  the  jiurchascr  by  his  own  fault  ahandons  the  eoutract,!* 
or  where  the  contract  is  lor  any  eause  illegal.^  If  the  pur- 
chaser abandons  the  contract  because  the  vendor  cannot  fulfil 
it  as  agreed  upon,  as  if  it  is  to  give  a  good  title,  the  trust  or 
lien  will  not  continue.'*  Wherever  one  wrongfully  obtains 
the  legal  title  to  land  which  in  c(iuity  and  good  conscience 
belongs  to  anotlier,  C(piity  will  raise  a  constructive  trust.^ 

§  232.  Similar  to  this  is  tlie  constructive  lien  or  triist  in 
favor  of  a  vendor  for  his  unpaid  purchase-money;  for  the 
vendor  of  land  has  a  lien  on  the  land  for  the  amount  of  the 
purchase-money,  not  only  against  the  vendee  himself  and  his 
heirs  and  other  privies  in  estate,  but  also  against  all  subse- 
quent purchasers  having  notice  that  the  purchase-money 
remains  unpaid.  To  the  extent  of  the  lien,  the  vendee  be- 
comes a  trustee  for  the  vendor;  and  the  vendee's  heirs,  and 
all  other  persons  claiming  under  him  or  them  with  notice, 
are  construed  by  courts  of  equity  to  be  trustees.  This  doc- 
trine is  well  established  in  the  juris])rudence  of  England,^ 
and  it  has  been  recognized,  and  acted  upon,  in  many  of  the 
United  States. '^     The  principle  upon  which  the  lien  depends 

1  Paul  r.  Wilkins,  Toth.  106;  Barker  v.  Hill,  2  Ch.  R.  113  ;  Winged  v. 
Lefebury,  *2  Eq.  Cas.  Ab.  32,  pr.  43  ;  Orlebar  v.  Fletcher,  1  P.  Wins  737 ; 
Bowles  r.  Bowles,  6  Yes.  95,  n. ;  Whitworth  v.  Davis,  V.  &  B.  54") ;  Tiernan 
r.  Roland,  15  Penn.  St.  429  ;  Rutherford  v.  Green,  2  Ired.  Eq.  121  ;  Jacobs 
r.  Lake,  id.  28G  ;  Newton  r.  Swazey,  8  N.  PI.  9;  Glaze  /•.  Drayton,  1  Dev. 
109.  In  Massachusetts,  the  probate  court  or  the  supreme  judicial  court 
may  autliorize  the  executor  or  administrator,  or  the  guardian  of  an  insane 
person,  to  convey  in  such  cases.     Public  Stat.  1882. 

2  Dinn  v.  Grant,  5  De  G.  &  Sm.  451. 

8  Ewiiig  V.  Osbaldiston,  2  My.  &  Cr.  88. 

*  Wythes  V.  Lee,  3  Drew.  396. 

6  Lakin  v.  S.  B.  M.  Co.,  11  Sawy.  (U.  S.)  231. 

«  See  Llackreth  v.  Symmons,  15  "Ves.  329,  where  Lord  Eldon  cited  and 
commented  upon  all  the  cases  previous  to  that  time.  See  s.  c.  1  Lead. 
Cas.  P2q.  336,  where  the  later  English  cases  are  quoted  and  also  the  Ameri- 
can cases.  Lemon  v.  Whitely,  4  Rus.  423  ;  Chapman  v.  Tanner,  1  Vern. 
267;  Blackburn  i\  Gregson,  1  Bro.  Ch.  420;  Burgess  r.  Wheat,  1  Eden, 
211;  1  W.  Black.  150. 

■^  In  Elaine  the  doctrine  is  entirely  rejected  as  inconsistent  with  the 

34:3 


§  232.]     TRUSTS  BY  EQUITABLE  CONSTRUCTION.   [CHAP.  VII. 

is  this :  that  a  person  who  has  obtained  the  estate  of  another 
ought  not,  in  conscience,  to  keep  it,  and  not  pay  the  consid- 

registry  laws  and  policy  of  the  State;  Philbrook  v.  Delano,  29  Maine,  415. 
In  New  Hampshire  the  court  has  left  it  undecided :  Arlin  v.  Brown,  44 
N.  II.  102,  and  see  Buntin  v.  French,  16  X.  H.  592.  In  Vermont  the 
doctrine  was  established  in  an  able  judgment  by  Ch.  J.  Kedfield :  Manly 
V.  Slason,  21  Vt.  271,  but  abolished  by  Stat.  1851.  In  Massachusetts  it 
is  rejected:  Ahrend  v.  Odiorne,  118  ]\Iass.  261.  In  Connecticut  it  is  un- 
decided :  Atwood  V.  Vincent,  17  Conn.  575.  See  AVatson  v.  Wells,  5  Conn. 
468;  Dean  v.  Dean,  6  Conn.  285;  Meigs  v.  Dimock,  id.  458;  Chapman  v. 
Beardsley,  31  Conn.  115.  In  Rhode  Island  it  is  recognized  ;  Kent,  Adm'r, 
V.  Gerhard,  et  ux.  12  R.  I.  92.  In  New  York  it  is  well  established :  Staf- 
ford V.  Van  Renselaer,  9  Cow.  316;  Garson  v.  Green,  1  Johns.  Ch.  3U8 ; 
White  V.  Williams,  1  Paige,  Ch.  502  ;  Fish  v.  Ilowland,  id.  20  ;  Warner  v. 
Van  Alstyne,  3  id.  513  ;  Shirly  v.  Sugar  Ref.,  2  Edw.  Ch.  505 ;  Dubois 
V.  Hall,  43  Barb.  26  ;  Warren  v.  Fenn,  28  id.  333;  Champion  v.  Brown, 

6  Johns.  402.  In  New  Jersey,  also  :  Vandoren  v.  Todd,  2  Green,  Ch.  397  ; 
Brinkerhoff  v.  Vansciven,  3  id.  251 ;  Herbert  v.  Scofield,  1  Stockt.  Ch. 
492.  In  Pennsylvania  the  doctrine  is  rejected,  though  there  may  be  such 
a  conditional  title  conveyed,  as  will  give  the  vendor  a  preference  for  the 
purchase-money  over  all  others  claiming  under  the  vendee:  Irvine  v.  Camp- 
bell, 6  Binn.  118;  Stouffcr  v.  Coleman,  1  Yeates,  393;  Kauffelt  v.  Bower, 

7  Serg.  &  R.  64;  Semple  v.  Burd,  id.  286  ;  Bear  v.  Whisler,  7  Watts,  147; 
Zentmyer  r.  Miltower,  5  Penn.  St.  403 ;  Stephen's  App.,  38  id.  9  ;  Springer 
V.  Walters,  34  id.  328;  Hepburn  v.  Snyder,  3  id.  72  ;  Megargel  v.  Saul, 
3  Whar.  19  ;  Cook  v.  Trimble,  9  Watts,  15;  Heist  v.  Baker,  49  Penn.  St. 
9  ;  Straus's  App.,  id.  353.  In  Delaware  the  point  is  undecided  :  Budd  v. 
Basti,  1  Ilarr.  69.  In  Maryland  it  is  well  established  :  White  v.  Casa- 
nave,  1  liar.  &  J.  106  ;  Ghiselin  v.  Ferguson,  4  Har.  &  J.  522;  Pratt  v. 
Van  Wyck,  6  id.  495;  Magruder  v  Peter,  11  id.  217;  Repp  r.  Repp,  12 
id.  341  ;  Moreton  v.  Harrison,  1  Bland,  Ch.  491;  Carr  i'.  Hobbs,  11  Md. 
285  ;  Hummer  v.  Schott,  21  Md.  307  ;  Hall  v.  Jones,  id.  439;  Bratt  v. 
Bratt  id.  578.  In  Virginia  it  was  long  acted  upon  :  Graves  v.  McCall,  1 
Call,  414;  Handley  v.  Lyons,  5  Munf.  342 ;  Duvall  v.  Bibb,  4  Hen.  &  M. 
113;  Hatcher  v.  Hatcher,  1  Rand.  53;  Redford  v.  Gibson,  12  Leigh,  332. 
But  it  is  now  abolished  by  the  code:  Yancy  i\  Manck,  15  Grat.  300; 
Hempfield  R.  R.  Co.  v.  Thornbury,  4  W.  Va.  261.  In  North  Carolina, 
after  being  acted  upon  for  some  time,  it  was  overruled  :  Cameron  v. 
Mason,  7  Ired.  Eq.  180;  Gabee  v.  Sneed,  1  Dev.  &  B.  333;  AVamble  v. 
Battle,  3  Ired.  Eq.  182  ;  Henderson  v.  Burton,  id.  259.  In  South  Caro- 
lina it  was  never  acted  upon  :  Wragg  v.  Comptroller-Gen.,  2  Des.  509. 
In  Georgia  it  is  acted  upon :  INIarine  Fire  Ins.  Co.  v.  Early,  Charl.  279  ; 
Hampden  r.  INIiller,  Dud.  120  ;  Mounce  r.  Byars,  16  Ga.  469 ;  Chance  v. 
McWharter,  26  Ga.  315;  Stile  v.  Griffin,  27  Ga.  504;  Minis  v.  Lockett, 

344 


CHAP     VII.]  VENDOIi'S   LIEN.  [§  232. 

eratioii-moncy  in  full;  and  a  third  jtcrson,  who  receives  the 
estate  with  full  knowledge  that  it  has  not  been  paid  for, 
ought  not,    as  a  matter  of  eijuity,  to   be   allowed  t<j  keep  it 

23  Ga.  237;  Minis  c.  Maccni  and  Western  Railroad,  3  Kelly,  333.  Also 
in  Florida  :  Woods  r.  Bailey,  3  Fla.  41.  And  so  in  Alabama:  liurns  r. 
Taylor,  2'i  Ala.  2iJo;  Haley  i:  Bennett,  5  Porter,  452  ;  Koper  v.  McCook, 

7  Ala.  31S;  Griflin  r.  Cainack,  30  Ala.  G95.  So  in  Mississippi  :  Trotter 
V.  Erwin,  27  ]\Iiss.  772  ;  Stewart  v.  Ives,  1  Sm.  &  M.  197;  Tanner  v. 
Hicks,  4  id.  294;  Upshaw  v.  Hargrave,  (J  id  286;  Dunlop  i:  Burnett,  5  id, 
702 ;  Servis  v.  Beatty,  32  Miss.  52.  It  is  established  in  Texas  :  Pinchain 
V.  Collard,  13  Tex.  333  ;  Wheeler  v.  Lane,  21  Tex.  583 ;  McAlpin  v.  Bur- 
nett, 23  Tex.  649.  So  in  Arkansas  :  English  v.  liussell,  Hemp.  35;  Scott 
r.  Orbinson,  2  Ark.  2U2  ;  Shall  /■.  Biscoe,  18  Ark.  142.  So  in  Missouri: 
Marsh  r.  Turner,  4  ]Mo.  53;  IMcKnight  v.  Brady,  2  ^lo.  110;  Davis  f. 
Lamb,  30  ]\Io.  441  ;  Bledsoe  v.  Games,  id.  448  ;  Delassus  v.  I'oston,  19 
Mo.  425.  So  in  Tennessee  :  Brown  v.  Vanlier,  7  Humph.  239  ;  Eskridge 
V.  McClure,  2  Yerg.  84;  Marshall  ;•.  Christmas,  3  Humph.  616;  Campbell 
V.  Baldwin,  2  Humph.  248  ;  Uzzell  v.  .Muck,  4  Humph.  310  ;  :\I.dley  r. 
Davis,  5  Humph.  387  ;  Norvell  c.  Johnson,  id.  489  ;  Taylor  r.  Hunter,  id. 
560.  So  in  Kentucky  :  Muir  v.  Cross,  10  B.  Mon.  277;  Fowler  r.  Rust, 
2  A.  K.  :Marsh.  294  ;  Taylor  v.  Alloway,  2  Litt.  216  ;  ]\Iosely  v.  Garrett, 

I  J.  J.  Marsh.  212;  Richardson  v.  Baker,  5  id.  323;  Cox  v.  Fenwick,  3 
Bibb,  183.  So  in  Ohio:  Williams  v.  Roberts,  5  Ohio,  35;  Tiernan  v. 
Bean,  2  Ham.  383;  Magham  r.  Coombs,  14  Ohio,  428  ;  Neil  v.  Kinney,  11 
Ohio  St.  58.  So  in  Indiana  :  McCarty  i:  Pruet,  4  Tnd.  46  ;  Lagow  v. 
Badollft,  1  Blackf.  416;  Evans  v.  Goodlett,  id.  246;  Merritt  r.  Wiles,  18 
Ind.  171;  Cox  r.  Wood,  20  Ind.  54.       So  in  Illinois:  Trustees  r.  Wright, 

II  111.  603.  So  in  Michigan  :  Sears  v.  Smith,  2  Mich.  243  ;  Carroll  r.  Van 
Renselaer,  Ilarring.  Ch.  225.  Also  in  Iowa  :  Pierson  r.  David,  1  Iowa, 
23;  Rakestraw  v.  Hamilton,  14  Iowa,  147;  Patterson  v.  Linder,  id.  414; 
Tupple  r.  Viers,  id.  515;  (Jrapengether  r.  Fejervary,  9  Iowa,  163;  Hays 
r.  Horiiie,  12  Iowa,  61.  So  in  Wisconsin  :  Toby  r.  j\lcAllister,  9  Wis. 
463.  Also  in  Minnesota :  Daughaday  r.  Payne,  6  Minn.  443.  In  Kansas 
there  is  no  lien  :  Simpson  v.  Munder,  3  Kans.  172.  And  so  in  Nebraska  : 
Edmiiistor  r.  Iliggins,  6  Neb.  265.  Tlie  lien  exists  in  California:  True- 
body  r.  .lacobson,  2  Cal.  269;  Taylor  c.  McKiiiney,  20  Cal.  61S;  Baum  r. 
Grigsby,  21  Cal.  172  ;  Sparks  r.  Hess,  15  Cal.  186  ;  Walk'-r   r.  Sedgwick, 

8  Cal.  308;  Cahoon  v.  Robinson,  6  Cal.  225  ;  Salmon  r.  Hoffman,  2  Cal. 
138  ;  Burtt  v.  AVilson,  2S  Cal.  632.  The  same  doctrine  is  held  in  the 
courts  of  the  United  States  :  Chilton  i-.  Braiden,  2  Black,  458  ;  CJilman  r. 
Brown,  1  Mason,  101  ;  4  Wheat.  255  ;  Bayley  c  Greenleaf,  7  Wheat.  46; 
Bush  r.  IMarshall,  6  How.  284  ;  f! alloway  v.  Finley,  12  Pet.  264  ;  McLearn 
V.  McLellan,  10  Pet.  640  ;  Cole  i--.  Scott,  2  Wash.  141. 

345 


§  233.]  TRUSTS   BY    EQUITABLE    CONSTRUCTION.       [CHAP.   VII. 

without  paying  for  it.^  It  will  at  once  be  seen,  that,  as 
between  the  parties,  this  lien  is  founded  in  natural  justice.^ 
The  civil  law  gave  a  lien  on  both  real  and  personal  property 
to  the  vendor  for  the  purchase-money,  and  the  principle  was 
early  introduced  into  English  equity,  as  to  real  estate.^ 
Courts  administer  the  equity  by  converting  the  purchaser 
into  a  trustee.*  They,  in  effect,  say,  that  if  one  conveys  his 
land  and  takes  no  security  for  the  purchase-money,  the  pur- 
chaser shall  be  a  trustee  of  the  land  for  the  vendor  until  it 
is  paid.^ 

§  233.  It  has  been  objected  that  the  creation  of  this  lien 
or  trust  by  courts  of  equity  is  a  repeal  of  the  statute  of 
frauds.  It  is  answered,  that  the  raising  of  such  a  trust  is  no 
more  in  contravention  of  the  statute  than  the  creation  of  any 
other  resulting  or  constructive  trust  by  operation  of  law 
upon  the  acts  and  contracts  of  parties,  where  they  do  not 
contemplate  or  intend  a  trust. ^  It  is  further  objected,  in  the 
United  States,  that  the  raising  of  such  trusts  is  contrary  to 
the  policy  of  the  registry  laws  which  require  all  deeds  and 
liens  to  be  matter  of  record.*^  But,  as  between  the  parties, 
the  raising  of  a  trust  to  secure  the  purchase-money  is  no 
more  against  the  policy  of  the  registry  laws  than  is  the  rais- 
ing of  a  resulting  trust  to  secure  the  actual  purchaser,  where 
the  deed  is  taken  in  the  name  of  another,  or  the  raising  of  a 
constructive  trust  where  one  man  has  defrauded  another  of 
his  title.  In  either  case  there  is  a  secret  trust  that  does  not 
appear  upon  the  records  of  the  registry.     So,  as  against  third 

1  Hughes  V.  Kearney,  1  Sch.  &  Lef.  135 ;  Chilton  v.  Braiden,  2  Black. 
458. 

2  Inst.  Lib.  2,  tit.  1,  §  41;  Blackburn  v.  Grei^son,  1  Cox,  100;  Chap- 
man V.  Tanner,  1  Vern.  267. 

8  Mackreth  v.  Symmons,  15  Yes.  337;  Dig.  Lib.  IS,  tit.  1,  c.  19,  22, 
53 ;  Domat,  B.  3,  tit.  1,  §  5,  art.  4. 

*  Ibid.;  Blackburn  v.  Gregson,  1  Bro.  Ch.  420;  Walker,  Am.  Law, 
315. 

6  Ibid. 

*  jMackreth  v.  Symmons,  15  Ves.  329  ;  Manly  v.  Slason,  15  Vt.  271. 
f  Philbrook  v.  Delano,  29  Maine,  415. 

346 


CHAP.  VII.]  vendor's  lien.  [§  234. 

persons  who  take  the  land  with  notice  that  the  purchase- 
money  is  unpaid,  the  jiolicy  of  the  registry  laws  apjdies  in 
the  sanu!  manner  that  it  applies  to  other  unrecorded  deeds 
or  liens.'  Thus,  if  a  second  purchaser  or  nujrtgagee  has 
notice  of  a  prior  sale  or  morty;nge  for  a  valualjJe  considera- 
tion, he  cannot,  hy  putting  his  deed  or  mortgage  first  on 
record,  deprive  the  prior  purchaser  or  mortgagee  of  his  title 
or  security.^  It  is,  however,  true  that  many  courts  have 
looked  upon  this  trust  with  disfavor,  although  they  have 
recognized  its  existence,^  and  some  States  have  formally 
aholishcd  it  by  statute.*  (a)  While  other  courts  deem  it 
highly  erpii table,  and  eminently  consistent  with  the  most 
perfect  ideas  of  moral  justice.^ 

§  234.  In  most  cases  the  cestui  que  trust  has  an  equitable 
estate  in  the  land  to  which  his  trust  attaches,  an  estate 
which  he  may  sell,  assign,  or  devise ;  but  a  vendor  having 
only  a  lien  for  his  purchase-money,  has  no  estate  in  the  land. 
It  is  neither  ^us  in  re  nor  jus  ad  rem.  It  is  the  mere  possi- 
bility of  a  right,  until  it  is  established  by  a  final  decree  of  a 
court  in  each  casc.^  (b)     It  is  not  a  direct  trust  in  the  land 

1  Manly  v.  Slason,  21  Vt.  271. 

2  Bayley  v.  (ireenleaf,  7  Wheat.  51;  Conover  v.  Warren,  1  Gil.  502; 
Brawley  r.  Catron,  8  Leic^h,  .j27  ;  Aloore  v.  Halcombe,  3  Leigh,  GOO. 

^  Vermont  and  Virginia,  ut  sup, 

4  Ibid. 

5  Manly  v.  Slason,  21  Vt.  278. 

«  Gilraan  r.  Brown,  1  Mason,  21;  I  Lead.  Cas.  in  Eq.  272-275;  Wil- 
liams r.  Young,  17  Cal.  403  ;  21  Cal.  227. 

(a)  In  some  of  the  States,  as,  e.g.  43  W.  Va.  102  ;   Ansley  v.  Pasahro, 

in   West   Virginia  and   Nebraska,  22  Neb.  6G2. 

this  lien  does  not  exist  unless  ex-  (i)  The  lien  applies  to  equitable 
pressly  reserved  in  a  conveyance;  as  well  as  legal  interests:  Board  r. 
when  so  reserved  it  amounts  to  a  Wilson,  34  W.  Va.  COO  ;  and  to  con- 
mortgage.  See  Fisher  r.  Shrop-  veyaiices  by  quit-claim  as  well  as 
shire,  147  U.  S.  133;  Roanoke  B.  warranty  deeds.  Robinson  r.  Ap- 
&  L.  Co.  V.  Simmons  (Va.),  20  pleton,  124  111.  276.  The  lien  is 
S.  E.  Rep.  955 ;  McKeown  v.  Col-  joint,  -when  different  vendors  join 
lins,  33  Fla.  276 ;   Scraggs  r.  Hill,  in  one  contract.     Bri.-<co  r.  Miuah 

347 


§  235.]  TRUSTS   BY    EQUITABLE    CONSTKUCTION.      [CHAP.    VIL 

itself,  but  a  collateral  trust  for  the  security  of  the  debt.  It 
is  in  fact  a  remedy  for  a  debt,  and  not  a  right  of  property. 
It  follows,  that  the  remedy  can  be  enforced  only  so  long  as 
the  debt  can  be  enforced ;  that  where  an  action  for  the  pur- 
chase-money is  gone,  the  right  to  enforce  the  lien,  or  the  lien 
itself,  is  gone  also.  This  lien  or  trust  continues  so  long  as 
the  purchase-money  remains  unpaid,  or  so  long  as  an  action 
can  be  maintained  for  its  collection.  If  the  action  is  barred 
by  the  statute  of  limitations,  the  remedy  to  enforce  the  lien 
is  gone  also.^  In  this  respect  the  vendor's  lien  differs  from 
a  mortgage,  which  may  be  enforced  against  the  land  after  all 
right  to  enforce  the  debt  against  the  mortgagor  is  barred  by 
the  statute  of  limitations,  or  by  his  discharge  in  bankruptcy. 
If  a  cestui  que  trust  conveys  his  equitable  estate  in  land,  he 
will  have  the  same  lien  upon  it  for  the  purchase-money  as  in 
the  case  of  a  legal  estate.  ^ 

§  235.  The  lien  exists,  notwithstanding  the  deed  recites^ 
or  acknowledges  *  that  the  consideration  is  paid,  and  notwith- 
standing a  receipt  of  the  payment  is  indorsed  upon  the  back 

1  Borst  I'.  Corey,  15  N.  Y.  505 ;  Sheratz  v.  Nicodemus,  7  Yerg.  9 ;  Trot- 
ter V.  Erwin,  27  Miss.  772  ;  Addams  v.  Hefferman,  9  Watts,  530  ;  Alex- 
ander V.  McMurray,  8  Watts,  504.  But  in  Maryland  it  was  held  to  be  a 
direct  trust  and  property  in  the  land,  like  a  mortgage,  which  could  be  en- 
forced after  the  personal  obligation  of  the  vendee  was  gone.  Moreton  v. 
Harrison,  1  Bland,  491 ;  Lingan  v.  Henderson,  id.  236.  And  see  Relfe 
V.  Relfe,  34  Ala.  500. 

2  Iglehart  v.  Armiger,  1  Bland,  519  ;  Galloway  v.  Hamilton,  1  Dana, 
576  ;  Lignon  v.  Alexander,  7  J.  J.  Marsh.  288  ;  Stewart  u.  Hatton,  3  id. 
178.  But  see  Bayley  v.  Greenleaf,  7  Wheat.  46  ;  Schnebly  v.  Ragan, 
7  Gill  &  J.  120. 

3  Thornton  v.  Knox,  6  B.  Hon.  74  ;  Mackreth  v.  Symraons,  15  Ves. 
337;  Hughes  v.  Kearney,  1  Sch.  &  Let.  135;  Winter  (;.  Anson,  3  Russ. 
488;   1  Sim.  &  S.  434;   Saunders  v.  Leslie,  2  B.  &  B.  514. 

*  Gilman  v.  Brown,  1  Mason,  C.  C.  214;  Sheratz  v.  Nicodemus,  7  Yerg. 
9;  Ewbank  r.  Boston,  5  Mon.  287;  Redford  v.  Gibson,  12  Leigh,  344; 
Tribble  c.  Oldham,  5  J.  J.  Marsh.  144. 

C.  M.  Co.,  82  F.  R.  952;  89  id.  891.  not   apply  in   favor   of  agreements 

Its  amount  must  be  capable  of  ex-  to  support  during   life.     Peters  v. 

act  ascertainment ;    hence  it  does  Tunell,  43  Minn.  473. 
348 


CHAP.  VII.]  vendor's  lien.  [§  236. 

of  the  deed,'  if  in  fact  it  is  not  paid.  And  if  the  con.sidera- 
tion  is  not  to  be  paid  until  after  the  death  of  the  grantor, 
and  then  only  upon  a  contingency,  as  if  no  claim  for  dower 
is  made  in  the  mean  time,  the  lien  will  arise  ;^  but  if  the 
consideration  of  the  sale  is  something  other  than  money,  as 
if  the  vendor  makes  the  sale  for  the  consideration  of  his 
future  support,  no  lien  will  arise ;»  nor  if  in  consideration 
that  his  debts  are  paid;*  nor  if  the  amount  of  the  considera- 
tion is  uncertain  and  unli(iuidated.^  Nor  if  it  api)ears  that 
the  consideration  is  that  the  vendee  shall  enter  into  cove- 
nants to  do  certain  things.^  If  a  note  or  bond  is  taken  for 
the  consideration,  and  includes  anything  other  than  the 
price  of  the  land  sold,   the  lien  will  not  attach.'^ 

§  236.  Where  a  vendor  takes  security  for  the  purchase- 
money,  it  is  often  a  difficult  question  to  determine  whether 
he  has  there])y  abandoned  or  waived  his  lien.  Much  of  the 
litigation  upon  vendor's  liens  has  arisen  over  this  (juestion, 
—  whether  the  lien  was  abandoned  or  not  by  the  parties.  Of 
course,  it  is  a  pure  question  of  fact  or  intention.  By  the 
civil  law,  the  taking  of  any  kind  of  security  was  an  abandon- 
ment of  the  lien  upon  the  property ;  this  rule  has  not  pre- 
vailed in  England.  The  rule  in  England  is,  that  prima  facie 
the  vendor  has  a  lien  for  the  purchase-money :  the  presump- 
tion in  favor  of  this  lien  continues  until  it  is  displaced  by 
satisfactory  evidence  that  the  lien  has  been  abandoned  or 
extinguished.  The  burden  is  on  the  vendee  to  repel  the 
presumption.     The  taking  of  security  by  the  vendor  is  evi- 

1  Ibid. 

2  Kedford  r.  Catron,  8  Leigh,  528. 

8  ArUn  V.  Brown,  44  N.  II.  10 ."3 ;  McCandlish  r.  Keen,  13  C.rat.  615; 
Brawley  v.  Catron,  8  Li'igh,  528;    McKillip  c.  McKillip,  8  Barb.  552. 

■•  Chapman  i'.  Beardley,  3  Conn.  115. 

6  Ibid. 

«  Buckland  c.  Pocknell,  13  Sim.  406 ;  Dixon  j).  Gayfere,  17  Beav.  421 ; 
21  Beav,  118;  Clarke  c.  Boyce.  3  Sim.  499;  Parrott  r.  Sweetland,  ^^  My. 
&  K.  655.  In  Alabama  the  lien  was  held  to  arise  in  case  of  an  exchange 
of  lands.     Burns  r.  Taylor,  23  Ala.  255. 

'  McCandlish  r.  Keen,  13  Grat.  605 ;  James  v.  Bird,  8  Leigh,  51. 

349 


§  236.]  TRUSTS   BY   EQUITABLE    CONSTRUCTION.       [CIIAP.    VII. 

dcnce  upon  that  question,  more  or  less  satisfactory  accord- 
ing to  the  nature  of  the  security  taken  and  the  circumstances 
under  which  it  is  taken.  ^  It  has  been  held  that  the  taking 
of  a  mortgage  on  another  estate  was  not  conclusive  evidence 
that  the  lien  was  abandoned  ;  ^  and  so,  bills  or  notes  indorsed 
by  third  persons,  or  bonds  with  a  surety,  are  not  necessarily 
conclusive  evidence  that  the  vendor  in  taking  them  waives 
his  licn.^  It  may  be,  in  such  cases,  that  the  vendor  accepted 
them  as  evidences  of  the  amount  of  the  purchase-money 
and  debt,  or  as  security  in  addition  to  his  lien.  But  if  the 
security  taken  is  totally  distinct  and  independent,  it  will  be 
very  strong  evidence  that  it  was  intended  to  be  substituted 
in  place  of  the  lien;*  and  if  it  is  in  any  way  inconsistent 
with  the  continued  existence  of  the  lien,  it  will,  of  course, 
be  conclusive  evidence  that  the  lien  was  abandoned  or  ex- 
tinguished.^ Lord  Eldon,  after  a  careful  review  of  the 
authorities,  came  to  the  conclusion  that  every  case  depended 
upon  its  own  peculiar  facts  and  circumstances ;  that  different 
judges  would  have  determined  the  same  case  differently;  and 
that  there  was  no  general  rule  that  was  satisfactory ;  and  he 
adds,  "If  I  had  found  it  laid  down  in  distinct  and  inflexible 

1  Nairn  v.  Prowse,  6  Ves.  759 ;  Mactreth  v.  Symmons,  15  Ves.  342 
Garsou  r.  Gi'een,  1  Johns.  Ch.  308 ;  Lewis  v.  Caperton,  8  Grat.  148 
Plowman  v.  Riddle,  14  Ala.  169;  Hughes  v.  Kearney,  1  Sch.  &  Lef.  136 
Saunders  r.  Leslie,  2  B.  &  B.  514 ;   Bradford  v.  Marvin,  2  Fla.  463. 

2  Ibid. ;  Saunders  v.  Leslie,  2  B.  &  B.  514. 

^  Hughes  I'.  Kearney,  1  Sch.  &  Lef.  135 :  Gibbons  r.  Baddall,  2  Eq. 
Ab.  682;  Grant  v.  Mills,  2  Yes.  &  B.  306;  Cooper  v.  Spottiswood,  Taml. 
21;  Ex  parte  Peake,  1  Madd.  349  ;  Ex  parte  Loring,  2  Rose,  79  ;  Saun- 
ders V.  Leslie,  2  B.  &  B.  514 ;  Winter  v.  Anson,  3  Russ.  488;  1  S.  &  S. 
434;  Fawell  v.  Heelis,  Amb.  724;  Frail  v.  Ellis,  17  Eng.  L.  &  Eq.  457  ; 
Buckland  v.  Pocknell,  13  Sim.  406  ;  Blair  v.  Bromley,  5  Hare,  542  ;  2 
Phill.  354;  Hewitt  v.  Loosemore,  9  Hare,  449;  Kyles  v.  Tait,  6  Grat.  44; 
Blackburn  v.  Gregson,  1  Bro.  Ch.  420;  Coppin  v.  Coppin,  2  P.  Wms.  291; 
Clark  v.  Royle,  3  Sim.  499;  Elliott  v.  Edwards,  3  Bos.  &  P.  181. 

*  Ibid. ;  Gilman  v.  Brown,  1  Mason,  191  ;  Cood  i'.  Pollard,  9  Price, 
544;  10  Price,  109;  Parrott  v.  Sweetland,  3  My.  &  K.  655;  Nairn  t-. 
Prowse,  6  Ves.  752  ;  Mackreth  v.  Symmons,  15  Ves.  342. 

5  ]\Ianly  v.  Slason,  21  Vt.  271 ;  Hallock  v.  Smith,  3  Barb.  267  ;  Ex 
parte  Parkes,  1  Glyn.  &  Jam.  228. 

350 


CHAP. 


VII.] 


vendor'6  lien. 


[§  237. 


terms,  that  when  the  vendor  takes  security  for  the  considera- 
tion he  has  no  lien,  that  would  be  satisfactory."  ' 

§  237.  In  the  United  States,  the  rule  that  Lord  Eldon  said 
would  be  satisfactory  sultstantially  prevails.  Thus,  if  the 
vendor  does  any  act  which  manifests  an  intention  to  rely 
upon  any  security  independent  of  the  lien,  he  will  be  held  to 
have  waived  it; 2  as  if  he  accejit  a  mortJ,^^ge  on  other  prop- 
erty,'^ or  a  bond  or  note  with  a  third  person  as  surety*  or 
indorser,^  or  if  he  takes  a  pledge  of  stock  as  collateral, ^  (a) 
he  will  be  held  to  have  waived  his  lien.     So,  if  he  takes  a 

^  Mackreth  r.  Symmons,  15  Yes.  312. 

'^  Blackburn  r.  Gregson,  1  Bro.  Ch.  424,  and  notes  by  Perkins  ;  Buntin 
V.  French,  16  X.  H.  592;  Coit  v.  Fougera,  36  Barb  195;  Griffin  v.  Blan- 
chard,  17  Cal.  70  ;  Phelps  v.  Conover,  25  111.  309;  Selby  v.  .Stanley,  4  Minn. 
Go;  Ilaue  v.  Van  Deusen,  32  Barb.  92;  Parker  v.  Sewell,  24  Tex.  238; 
Dibble  r.  Mitchell,  15  Ind.  435. 

8  Richardson  r.  Ridgely,  8  Gill  &  J.  87  ;  White  v.  Dougherty,  1  IVIart. 
&  Y.  309;  Young  r.  Wood,  11  B.  Mon.  123;  Mattix  v.  Weand,  19  Ind. 
151 ;  Harris  v.  Harlan,  14  Ind.  104  ;  Shelby  v.  Perrin,  18  Tex.  515  ;  Cam- 
den V.  Vail,  23  Cal.  633 ;  Hadley  v.  Pickett,  25  Ind.  450. 

*  Boon  V.  Murphy,  6  Blackf.  272;  Williams  v.  Roberts,  5  Ohio,  35; 
Mayham  v.  Coombes,  14  Ohio,  428;  Wilson  v.  Graham,  5  Munf.  297; 
Francis  v.  Ilazelrigg's  Ex'rs,  Ilardin,  48;  Way  v  Patty,  1  Carter,  102; 
Burger  v.  Potter,  32  111.  60;  Sears  v.  Smith,  2  Mich.  243;  Porter  v  Du- 
buque, 20  Iowa,  440. 

6  Foster  r.  Trustees,  3  Ala.  302;  Gilman  v.  Brown,  1  ]\Iason,  191; 
4  Wheat.  255;  Marshall  r.  Christmas,  3  Humph.  616;  Burke  v.  Gray, 
6  How.  (Miss.)  527;  Conover  v.  Warren,  1  Gilm.  498;  Bradford  v.  Mar- 
vin, 2  Fla.  403. 

6  Lagow  V.  Badollet,  1  Blackf.  416. 


(a)  Or  obtains  a  judgment  for 
the  price  in  wliole  or  in  part,  and 
sells  the  land  thereunder.  Dicka- 
son  r.  Fisher,  137  Mo.  342.  Merely 
obtaining  judgment  on  the  note  does 
not  waive  the  lien.  Zwingle  v.  Wil- 
kinson, 94  Tenn.  240  ;  Strain  v. 
Walton,  11  Texas  C.  App.  624. 

Till'  lien  is  waived  by  accepting 
in  place  thereof  security  by  a  mort- 


gage upon  the  land  or  by  a  surety. 
Boies  r.  Benhara,  127  N.  Y.  620; 
Baker  v.  Updike,  155  111.  54;  Rob- 
bins  r.  Masteller,  147  Ind.  122; 
Kinney  v.  Eusminger,  94  Ala.  536 ; 
Hamniett  r.  Stricklin,  99  Ala.  616; 
Fields  V.  Drennen,  115  Ala.  558; 
see  Slide  &  Spur  Gold  Mines  v.  Sey- 
mour, 153  U.  S.  509 

351 


§  237.]  TRUSTS   BY    EQUITABLE    CONSTRUCTION.       [CIIAP.    VII. 

mortgage  on  the  same  land  sold  for  part  of  the  purchase- 
money,  or  for  the  whole, ^  he  will  be  held  to  have  waived  his 
lien  for  the  remainder.'^  But  in  these  cases  the  presumption 
that  the  vendor  intended  to  waive  his  lien  by  taking  such 
securities  may  be  rebutted  by  any  satisfactory  evidence  that 
it  was  not  intended  that  the  lien  should  be  waived.^  On  the 
other  hand,  the  presumption  of  a  lien  may  be  rebutted, 
though  no  security  is  taken,  by  satisfactory  evidence  that  it 
was  intended  that  the  lien  should  not  be  relied  on.*  But, 
generally,  the  mere  taking  of  the  vendee's  note,  or  bond,  or 
bill,  or  check, ^  {a)  or  the  renewal  of  these  evidences  of 
debt,^  will  not  be  sufficient  evidence  that  the  vendor  intended 
to  waive  his  lien.'^  But  any  conduct  in  the  vendor  that 
makes  it  unjust,  unfair,  or  inequitable  for  him  to  insist  upon 
the   lien,    will   discharge   it.^     If   worthless   securities  are 

^  Little  V.  Brown,  2  Leigh,  3.o5 ;  ITadley  v.  Pickett,  25  Ind.  4.50.  But 
see  to  the  contrary,  Boos  v.  Ewing,  17  Ohio,  520;  Baum  v.  Grigsby,  21 
Cal.  172. 

2  Brown  v.  Oilman,  4  Wheat.  291;  Fish  v.  Rowland,  1  Paige,  30; 
Phillips  V.  Saunderson,  1  Sm.  &  M.  465.  Even  if  the  mortgage  is  void. 
Camden  i'.  Vail,  23  Cal.  633;  Way  v.  Patty,  1  Ind.  102. 

8  Miras  I'.  Macon  and  Western  R.  R.,  3  Kelly,  333;  Campbell  v.  Bald- 
win, 2  Humph.  248;  Kyles  v.  Tait,  6  Grat.  48;  Tiernan  v.  Tburman, 
14  B.  Mon.  277;  Sears  v.  Smith,  2  Mich.  243;  Daughaday  i;.  Paine, 
6  Minn.  443. 

*  Clark  V.  Hunt,  3  J.  J.  Marsh.  553;  Phillips  v.  Saunderson,  1  Sm.  & 
M.  462;  Bedford  v.  Gibson,  12  Leigh,  332;  Scott  v.  Orbinson,  21  Ark.  202. 

6  Honore  i'.  Bakewell,  6  B.  Mon.  67;  Baum  v.  Grigsby,  21  Cal.  172; 
Walker  v.  Sedgwick,  8  Cal.  398. 

«  Mims  V.  Lockett,  23  Ga.  237. 

'  Cox  V.  Fenwick,  3  Bibb,  183;  Evans  v.  Goodlet,  1  Blackf.  246;  Tay- 
lor V.  Hunter,  5  Humph.  569  ;  Garson  v.  Green,  1  Johns.  Ch.  308;  White 
V.  Williams,  1  Paige,  502  :  Clark  r.  Hunt,  3  J.  J.  Marsh.  553;  Thornton 
V.  Knox,  6  B.  Mon.  74 ;   Aldridge  i-.  Dunn,  7  Blackf.  249  ;  Ross  v.  Whitson, 

6  Yerg.  50 ;  Tompkins  v.  Mitchell,  2  Rand.  428 ;  Truebody  v.  Jacobson, 
2  Cal.  269;    Pinchain   u.  Collard,   13   Tex.  3.33;    Sheratz  u.  Nicodemus, 

7  Yerg.  9 ;  Manly  v.  Slason,  2  Vt.  271;  Baum  v.  Grigsby,  21  Cal.  172. 

«  Radford  v.  Gibson,  12  Leigh,  343:   Fowler  v.  Rust,  2  Marsh.  294; 

(a)  Mansfield  v.  Dameron,  42  W.  Va.  794;  Knight  v.  Knight,  113 
Ala.  597. 

352 


CHAP,  vii.]  vendor's  lien.  [§  238. 

fniudulcntly  imposed  upon  tlie  vendor,  he  will  retain  his 
lien.' 

§  238.  It  has  been  said  before,  that  the  lien  for  the  pur- 
chase-money is  not  an  estate  in  the  land,  nor  is  it  a  charge 
on  the  land ;  but  it  is  an  equity  between  the  parties,  their 
representatives  or  privies  in  law  or  estate,  to  be  resorted  to 
in  case  of  failure  of  payment  by  the  vendee.  It  is  a  possibil- 
ity that  may  be  perfected  by  proceedings  in  equity  into  an 
actual  estate  or  interest  in  the  land.^  (a)  Having  such  a 
character,  it  is  generally  considered  to  be  a  personal  privi- 
lege in  the  vendor,  which  descends  to  his  heirs  or  represen- 
tatives with  the  debt  for  the  purchase-money,  but  which 
cannot  be  assigned  to  a  third  person,  with  or  without  the 
bond,  note,  bill,  or  check  which  the  vendee  gave  for  the 
consideration.  3  (J)     If  one  of  several   purchasers  pays   the 

Clark  V.  Hunt,  3  J.  J.  Marsh.  553  ;  Phillips  v.  Saunderson,  1  Sm.  &  M. 
46-2;  McCown  r.  Jones,  li  Tex.  G82  ;  Scott  v.  Orbinson,  21  Ark.  292; 
Clamer  l:  Kawlings,  9  S.  &  M.  122;  Lynch  v.  Dearth,  2  Penn.  St.  101. 

1  Coit  r.  Fougera,  36  Barb.  195 ;  Toby  v.  McAllister,  9  Wis.  463. 

2  Young  t'.  Williams,  17  Cal.  403 ;  21  Cal.  227 ;  Keith  v.  Horner,  32 
111.  524. 

8  Dixon  V.  Dixon,  1  Md.  Ch.  220;  Wellborn  r.  Williams,  8  Ga.  258; 
Green  v.  Demoss,  10  Humph.  371;  Walker  r.  Williams,  30  Miss.  105; 
Briggs  r.  Hill,  G  How.  (Miss.)  362;  Shall  v.  Biscoe,  18  Ark.  142;  Brush 
V.  Kinsley,  14  Ohio,  20 ;  Horton  v.  Horner,  id.  437  ;  Sheratz  v.  Xicode- 

(o)  The  lien    is   enforceable   in  though  not  itself  assignable.     First 

equity,   although  the  legal  remedy  Nat.  Bank  c.  Salem  Capital  F.  M. 

has  not  been  exhausted.     Burgess  Co.,  39  Fed.  Rep.  89;  Law  r.  Butler, 

V.  Fairbanks,  83  Cal.  215.     But  not  44  Minn.  482  ;  Elraendorf  r.  Beirne, 

when  the  legal  remedy  is  adequate,  4  Tex.  Civ.   App.   188;    Gruhn   v. 

as  by  action  on  the  vendee's  cove-  Richardson,  12^  111.  178;  Martin  r. 

nant.      Whiteley  v.   Central  Trust  Martin,  1G4  111.  040.  If  several  notes 

Co.,  76  F.  R.  74.  thus  secured  are  assigned  to  differ- 

(h)  A  vendor's  lien  goes  to  his  ent  persons,  the  assignees  are  prima 

personal    representatives,   and    not  facie  to  share  pro  rata  in  the  pro- 

to  the  heir.     Robinson  r.  Appleton,  ceeds  of  the  land  when  sold  to  satisfy 

124111.276;  Evans  r.Enloe,  70  Wis.  the  lien.      Xasliville  Trust  Co.    v. 

345.      It   passes   by  a   transfer   of  Smythe,  94  Teuu.  513. 
the  notes  for  the   purchase-money, 

VOL.  I.  — 23  353 


§  238.]  TRUSTS   BY   EQUITABLE   CONSTRUCTION.      [CIIAP.   VII. 

whole  purchase-money,  he  does  not  thereby  secure  a  lien  on 
his  co-purchasers'  shares;^  nor  does  a  lien  accrue  to  a  third 
person  who  loans  the  purchase-money  to  the  vendee  and 
takes  his  note  therefor  ;2  but  if  it  is  agreed  by  the  vendor 
that  a  note  for  the  purchase-money  shall  be  given  to  a  third 
person,  it  seems  that  the  vendor's  lien  will  go  with  the  notc.^ 
If  the  note  given  to  the  vendor  for  the  purchase -money  is 
indorsed  by  him,  and  afterwards  paid  by  him,  his  lien  will 
revive  and  attach  to  it.*  If  a  surety  to  the  vendee's  note  or 
bond  for  the  purchase-money  is  obliged  to  pay  the  debt,  he 
will  be  subrogated  to  the  vendor's  lien,  and  will  have  a  right 
to  have  it  enforced  for  his  benefit.^     If  a  vendor  having  a 

mus,  7  Yerg.  9 ;    Gann   v.  Chester,  5    Yerg.  205  ;    White  v.  Williams, 

1  Paige,  502  ;  Ilallock  v.  Smith,  3  Barb.  267 ;  Green  v.  Crockett,  2  Dev. 
&Bat.  Eq.  390;  Moreton  v.  Harrison,  1  Bland,  '191 ;  Webb  v.  Robinson, 
14  Ga.  216;  Dickinson  v.  Chase,  1  Morris  (Iowa),  492;  Jackman  v.  Hal- 
lock,  1  Ohio,  318;  Tiernan  v.  Beam,  2  Ohio,  383;  Clairhorn  v.  Crockett, 
3  Yerg.  27;  Briggs  v.  Planters'  Bank,  1  Freem.  Ch.  574  ;  Iglehart  v.  Ami- 
ger,  1  Bland,  519  ;  Hayden  v.  Stuart,  4  Md.  Ch.  280;  Hall  v.  Maccubbin, 
6  Gill  &  J.  107  ;  Baum  v.  Grigsby,  21  Cal.  172  ;  Lewis  i:  Covilland,  id. 
178;  Williams  v.  Young,  id.  227;  Keith  v.  Horner,  32  111.  524  ;  Richards 
V.  Learning,  27  111.  431;  Watson  v.  Bane,  7  Md.  117.  But  in  Alabama, 
Texas,  Kentucky,  Indiana,  and  Iowa,  a  different  rule  prevails.  In  those 
States,  the  assignment  of  the  note  given  for  the  purchase-money  carries 
■with  it  to  the  assignee  the  vendor's  lien.  Roper  v,  IMcCook,  7  Ala.  318  ; 
White  V.  Stover,  10  Ala.  441 ;  Grigsby  v.  Hair,  25  Ala.  327 ;  Griffin  v. 
Camack,  36  Ala.  695;  Murray  v.  Able,  18  Tex.  515;  McAlpin  r.  Burnett, 
19  Tex.  497;  Moore  v.  Raymond,   15  Tex.  5.54;    Edwards  v.  Bohannon, 

2  Dana,  98 ;  Honoi-e  i'.  Bakewell,  6  B.  Mon.  67  ;  Lagow  v.  Badollet, 
1  Blackf.  417  ;  Brumfield  v.  Palmer,  7  id.  227  ;  Fisher  v.  Johnson,  5  Ind. 
492;  Kern  v.  Hazlerigg,  11  Ind.  443  ;  Rakestraw  v.  Hamilton,  14  Iowa, 
147 ;  Pierson  v.  David,  1  Clarke,  23. 

^  Glasscock  v.  Glasscock,  17  Tex.  480. 

2  Stansell  v.  Roberts,  13  Ohio,  148;  Skeggs  v.  Nelson,  25  Miss.  88  ; 
Crane  v.  Caldwell,  14  111.  468. 

3  Dryden  v.  Frost,  3  My.  &  Cr.  670.  In  this  case  the  third  person  was 
a  prior  mortgagee,  and  had  the  title-deeds  in  his  possession.  Colcord  v. 
Scamonds,  5  B.  Mon.  265. 

4  1  Lead.  Cas.  in  Eq.  368. 

6  Kleiser  v.  Scott,  6  Dana,  137  ;  Welch  v.  Parran,  2  Gill,  329 ;    Ghise- 
lin  V.  Ferguson,  4  Har.  &  J.  522  ;    Magruder  v.  Peter,  11  Gill.  &  J.  228; 
Burke  v.  Chrismau,  3  B.  Mou.  50;  Freeman  v.  Mebaue,  2  Jones,  Eq.  44; 
354 


CHAP.    VII.]  TRUSTS   BY    DESCENT   OF   TROrERTY.  [§  239. 

lien  on  real  estate  for  hin  purchase-money  enforces  his  debt 
against  the  personal  assets  of  a  deceased  vendee,  and  thereby 
deprives  creditors  or  legatees  of  the  deceased  vendee  of  the 
chance  of  being  paid  their  debts  or  legacies,  equity  will  sub- 
stitute them  in  the  place  of  the  vendor,  or  will  marshal  the 
assets  in  order  to  do  justice  to  all.' 

§  239.  This  equitable  lien  or  trust  prevails  against  the 
purchaser,  his  heirs,  and  all  persons  claiming  under  him  or 
them  with  notice  that  the  purchase-money  is  unpaid. ^  It 
prevails  against  the  right  of  dower  of  the  widow  of  the 
vendee,^  also  against  a  voluntary  donee,  or  a  purchaser  with- 
out notice,''  as  also  against  a  purchaser  for  value,  if  he  had 
notice  that  the  purchase-money  remained   unpaid.^     If   the 

Jordan  v.  Hudson,  11  Tex.  82;  Eddy  r.  Traver,  6  Paige,  521;  In  re 
IMcGill,  6  BaiT,  504  ;  Kinney  v.  Harvey,  2  Leigh,  70;  Ilaffey  v.  Birchetts, 
11  Leigh,  83  ;  Scherinerhorn  o.  Barhydt,  9  Paige,  30;  Tompkins  v.  Mitchell, 
2  Rand.  428;  Melery  u.  Cooper,  2  Bland,  109. 

1  2  Sugd.  V.  &  P.  873-878  (7th  Am.  ed.),  where  the  cases  are  collected 
and  commented  on. 

2  Hearle  v.  Botelers,  Gary,  Ch.  25  ;  ^Mackreth  v.  Symmons,  15  Yes. 
329 ;  Gibbons  v.  Baddall,  2  Eq.  Gas.  Ab.  682  ;  Walker  v.  Preswick,  2  Ves. 
622;  Elliot  v.  Edward.s,  3  Bos.  &  P.  181;  Winter  v.  Anson,  3  Russ.  493; 
Garson  i;.  Green,  1  Johns.  Ch.  308  ;  AVarner  v.  Van  Alstvne,  3  Paige, 
513  ;  Wade  v.  Greenwood,  2  Robin.  475  ;  Ewbank  v.  Poston,  5  !Mon.  285; 
Neil  V.  Kinney,  11  Ohio  St.  58. 

2  Warner  ».  Van  Alstyne,  3  Paige,  513 ;  Wilson  v.  Davidson,  2  Rob. 
385 ;  Ellicott  v,  Welch,  2  Bland,  243  ;  Kazareth,  &c.  v.  Lowe,  1  B.  l^Ion. 
257  ;  Fislier  v.  Johnson,  5  Ind.  492;  Crane  r.  Palmer,  8  Blackf.  120;  Wil- 
liams V.  Wood,  1  Humph.  408 ;  Besland  v.  Hewett,  11  .'^m.  cSc  M.  104. 

*  Upshaw  V.  Ilargrave,  0  Sm.  &  M.  280;  High  v.  Batte,  10  Yerg.  1S6, 
335 ;  Mounce  v.  Byars,  IG  Ga.  4G9  ;  Burlingame  r.  Robbins,  21  Barb.  327; 
Hallock  /•.  Smith,  3  Barb.  2G7. 

6  Wilcox  /•.  Calloway,  1  Wash.  38  ;  Graves  v.  IMcCall,  1  Call,  414;  Red- 
ford  r.  Gibson,  12  Leigh,  332;  Wright  r.  Woodland,  10  Gill  &  J.  388; 
Ghiselin  r.  Ferguson,  4  Har.  &  J.  522;  Mounce  v.  Byars,  11  Ga.  180; 
Thornton  v.  Knox,  6  B.  ]\Ion.  74;  Honore  v.  Bakewell,  id.  G7;  Tiernan  r. 
Thurman,  14  B.  Mon.  279;  Eskridge  r.  McClure,  2  Yerg.  84;  Sheratz  r. 
Nicodemus,  7  Yerg.  9;  Pierce  v.  Gates,  7  Blackf.  1G2 ;  Brumfield  r.  Pal- 
mer, id.  227 ;  McKnight  v.  Brady,  2  Mo.  110  ;  Briscoe  r.  Bronaugh,  1  Tex. 
320  ;  Pintard  c  Goodloe,  Hemp.  527  ;  Aniory  v.  Reilly,  9  Ind.  490 ;  Manly 
V.  Slason,  21  Vt.  271 ;  Hallock  c.  Smith,  3  Barb.  2G7;  Cator  v.  Pembroke, 

355 


§  239.]  TRUSTS   BY   EQUITABLE   CONSTRUCTION.      [CHAP.    VII. 

purchaser  from  the  vendee  has  not  paid  over  the  purchase- 
money,  equity  will  attach  the  lien  or  trust  to  the  money  in 
his  hands. ^  But  a  bona  fide  purchaser  for  value  from  the 
vendee,  without  notice,  will  take  the  estate  unaffected  by 
the  trust  or  lien;2(a)  or  if  by  intermediate  conveyances 
through  persons  who  have  notice  the  estate  finally  comes  to 
a  bona  fide  purchaser  for  value  without  notice,  it  will  be 
discharged  of  the  lien.^  A  bona  fide  purchaser  is  defined  to 
be  one  who  at  the  time  of  his  purchase  advances  a  new  con- 
sideration, surrenders  some  security,  or  does  some  other  act 
which  leaves  him  in  a  worse  position  if  his  purchase  should 
be  set  aside  ;^  of  course,  a  mortgagee  without  notice  for  a 
new  consideration  comes  within  this  definition.^  So,  a  con- 
veyance or  mortgage  to  individual  creditors  without  notice 
is  held  to  prevail  against  the  lien,  as  where  the  equities  are 
equal  the  legal  title  prevails.^     But  the  lien  prevails  against 

1  Bro.  Ch.  302;  Ewbank  v.  Poston,  5  Mon.  291;  McAlpin  v.  Burnett,  19 
Tex.  497  ;  Pierson  v.  David,  1  Clarke,  23 ;  Grapengether  v.  Fejervary, 
9  Iowa,  163 ;  Merritt  v.  Wells,  18  Ind.  171. 

1  Ripperdon  v.  Cozine,  8  B.  Mon.  465. 

2  Bayley  v.  Greenleaf ,  7  Wheat.  46 ;  Clark  v.  Hunt,  3  J.  J.  Marsh. 
553;    Duval  v.  Bibb,  4  Hen.  &  ]\I.  113;    Wood  v.  Bank  of  Kentucky, 

5  Mon.  194 ;  Blights,  &c.  v.  Bank,  &c.,  6  Mon.  192  ;  Taylor  r.  Hunter,  5 
Humph.  569  ;   Stewart  v.  Ives,  1  Sra.  &  M.  197;  Carnes  r.  Hubbard,  2  S 

6  jM.108  ;  Dunlop  ?;.  Burnett,  5  Sm.  &  M.  702;  Work  v.  Brayton,  5  Ind.  396 
Carter  v.  Bank  of  Georgia,  24  Ala.  37  ;  Bradford  v.  Harper,  25  Ala.  3-37 
Webb  V.  Rol)inson,  14  Ga.  216 ;  Champion  v.  Brown,  6  Johns.  Ch.  402 
Collier  r.  Harkness,  26  Ga.  362  ;  Selby  v.  Stanley,  4  Miss.  65  ;  Scott  v 
Orbinson,  21  Ark.  202. 

3  Boon  V.  Barnes,  23  Miss.  136. 

4  Ibid. 

5  Duval  V.  Bibb,  4  Hen.  &  ]\I.  113  ;  Wood  v.  Bank  of  Kentucky,  5  Mon 
194  ;  Clark  v.  Hunt,  3  J.  J.  Marsh.  553;  Growing  v.  Behn,  10  B.  Mon 
383. 

6  Bayley  v.  Greenleaf,  7  Wheat.  56  ;  Mitford  v.  Mitford,  9  Yes.  100 
Moore  ?'.  Holcombe,  3  Leigh,  597;  Webb  v.  Robinson,  14  Ga.  216;  Dun 
lop  V.  Burnett.  5  Sm.  &  M.  702;  Johnson  v.  Cawthorn,  1  Dev.  &  Bat.  32 
Harper  v.  Williams,  id.  179 ;   Roberts  v.  Rose,  2  Humph.  145 ;  Gann  v 

(a)  See  Koch  v.  Roth,  150  111.     473;    Hawes   v.  Chaille,    129    Ind 
212;  Hertzfeld  v.  Bailey,  103  Ala.    435. 
356 


CHAP.   VII.]  TRUSTS   BY    DESCENT   OF   PROPEETY.  [§  240. 

assignees  in  bankruptcy  or  insolvency,  and  against  a  general 
assignment  by  a  failing  debtor,  in  trust  for  all  his  creditors. 
In  these  cases  the  vendees  are  looked  upon  as  volunteers,  and, 
as  such,  they  have  the  rights  only  of  the  debtor  himself.^ 
Notice  to  the  agent  of  the  purchaser  is  notice  to  the  pur- 
chaser,2  and  if  the  vendor  remain  in  possession  it  will  be 
sufficient  to  put  a  purchaser  upon  his  intjuiry  and  is  con- 
structive notice,^  and  any  fact  that  would  put  a  reasonable 
man  upon  his  inquiry  will  affect  the  purchaser  with  notice.* 
So,  if  a  purchaser  knows  that  a  jtart  of  the  purchase-money 
is  unpaid,  he  is  put  upon  his  inquiry;*^  and  such  purchaser 
is  bound  to  take  notice  of  all  the  recitals  in  the  deed  to  the 
vendee.^ 

§  240.  A  person  may  also  become  a  trustee  by  construc- 
tion, in  the  absence  of  fraud,  where  a  trust  is  created ;  but 

Chester,  5  Yerg.  205  ;  but  see  Browu  v.  Vanlier,  7  Humph.  230  ;  Shirley 
r.  Sugar  Ref.,  2  Edw.  505  ;  llepp  v.  Repp,  12  Gill  &  J.  341  ;  Ringgold  c. 
Bryan,  3  Md.  Ch.  488 ;  Aldridge  v.  Dunn,  7  Blackf .  249  ;  but  see  Chance 
v.  McWortee,  26  Ga.  315. 

1  Mitford  V.  Mitford,  9  Ves.  100 ;  Fawell  v.  Ileelis,  Amb.  726  ;  Black- 
burn V.  Gregson,  1  Rro.  Ch.  420;  Grant  r.  Mills,  2  Ves.  &  B.  306  ;  Ex  parte 
Peake,  1  Madd.  350;  Chapman  v.  Tanner,  1  Vern.  267;  Bayley  v.  Green- 
leaf,  7  Wheat.  51 ;  Green  r.  Denio.s.s,  10  Humph.  371 ;  Brown  r.  Heathcote, 

1  Atk.  160;  Siiuond  v.  Hilbert,  1   Russ.  &  My.  729  ;  Jewson  v.  Moulsou, 

2  Atk.  417;  Scott  ?;.  Surman,  Willes,  402 ;  Warrall  r.  Morlar,  1  P.  Wms. 
459.  And  so  of  judgment  creditors.  Flanders  r.  Thompson,  3  Woods, 
9;  Rodgers  v.  Bowner,  45  N.  Y.  379;  Birkhard  v.  Edwards,  11  Ohio,  84; 
St.  Bank  v.  Campbell,  2  Rich.  (S.  C.  Eq.)  179;  Watkins  v.  Russell,  15 
Ark.  73  ;  Thomas  i'.  Kennedy,  24  Iowa,  397 ;  Dunlop  v.  Burnett,  5  Sm. 
&  M.  702. 

2  Mounce  v.  Byars,  11  Ga.  180;  Frail  v.  Ellis,  17  Eng.  L.  &  Eq.  457. 

8  Ringgold  V.  Bryan,  3  I\Id.  Ch.  488;  Hamilton  v.  Fowlkes,  16  Ark.  340; 
Hopkins  V.  Garrard,  6  B.  Mon.  67. 

*  Frail  v.  Ellis,  17  Eng.  L.  &  Eq.  457;  Briscoe  i'.  Bronaugh,  1  Tex. 
328. 

6  Manly  v.  Slasou,  21  Vt.  271. 

^  Kilpatrick  r.  Kilpatrick,  23  Miss.  124  ;  Thornton  v.  Knox,  6  B.  Mon. 
74  ;  Woodward  v.  Woodward,  7  B.  Mou.  116  ;  McRemmon  r.  Martin,  14 
Tex.  318;  Tiernan  v.  Thurman,  14  B.  Mon.  277;  Houore  v.  Bakewell, 
6  B.  Mon.  67  ;  Hutchinson  v.  Patrick,  22  Tex.  318;  McAlpin  r.  Burnett, 
23  Tex.  649. 

357 


§  240.]    TEUSTS  BY  EQUITABLE  CONSTRUCTION.   [CHAP,  VII. 

if  no  trustee  is  appointed,^  or  the  trustee  named  is  incapable 
of  taking,^  or  refuses  to  act,^  or  dics,^  or  the  office  becomes 
vacant  in  any  other  way ;  °  in  all  such  cases  every  person  to 
whom  the  trust  property  comes,  by  reason  of  there  being  no 
trustee,  will  be  treated  as  a  trustee,  and  he  may  be  ordered 
to  account,  and  to  convey  the  property  to  such  other  persons 
as  trustees  as  the  court  may  appoint.^  As  where  a  man 
makes  a  devise  in  trust  by  his  will,  but  names  no  trustee, 
the  land  descends  to  his  heirs,  but  in  trust  for  the  purposes 
named  in  the  will ;  and  his  heirs  would  be  required  to  account 
for  the  property,  and  to  convey  the  same  to  such  trustees  as 
the  court  might  appoint. ''  Courts  of  equity  have  inherent 
jurisdiction  over  all  matters  of  trust  and  trustees,  and  they 
never  allow  a  trust  to  fail  for  want  of  a  trustee.^  So,  if  a 
party  forbidden  by  law  to  convey  his  property  to  some  person 
standing  in  a  certain  relation  to  him,  as  if  a  husband  who 
cannot  convey  to  his  wife  should  make  an  absolute  convey- 
ance directly  to  her,  the  conveyance  would  not  pass  the  legal 
title,  but  equity  would  construe  it  into  a  declaration  of  trust, 
and  the  husband  into  a  trustee  for  the  wife.^  Therefore  if, 
upon  the  death  of  the  trustee  without  heirs,  the  legal  title 
should  escheat  to  the  Crown  or  the  State,  equity  would  fol- 

1  White  V.  White,  1  Bro.  Ch.  12;  Dodkin  v.  Brunt,  L.  R.  6  Eq.  580. 

2  Sonley  v.  Clockmakers'  Co.,  1  Bro.  Ch.  81 ;  Ex  parte  Turner,  1  Bailey, 
Ch.  39.5. 

3  King  V.  Donnelly,  5  Paige,  46  ;  Hawley  v.  James,  id.  318  ;  De  Pey- 
ster  r.  Clendining,  8  Paige,  295;  Lee  v.  Randolph,  2  Heu.  &  M.  12  ;  Ex 
parte  Kunst,  1  Bailey,  489 ;  Dawson  v.  Dawson,  Rice,  243 ;  Field  v.  Arrow- 
smith,  3  Humph.  448. 

*  Dunscomb  v.  Dunscomb,  2  Hen.  &  M.  11. 
6  Gibson's  Case,  1  Bland,  138. 

6  Ibid. ;  Cushney  v.  Henry,  4  Paige,  345 ;  Mclntire  School  v.  Zan. 
Canal,  &c.,  9  Ham.  203 ;  W^hite  v.  Hampton,  13  Iowa,  259;  INIcKenna  v. 
Phillips,  G  Whart.  571 ;  Boykin  v.  Ciples,  2  Hill,  Eq.  200 ;  Wilson  v. 
Towle,  3G  N.  H.  129;  Poolu.  Cummings,  20  Ala.  563;  Griffith  v.  Griffith, 
5  B.  Mon.  113. 

7  Stone  V.  Griffin,  3  Vt.  400. 

8  McCartney  v.  Bostwick,  32  N.  Y.  53;  Vidal  v.  Girard,  2  How. 
128. 

9  Huntly  V.  Huntly,  8  Ired.  Eq.  250 ;  Garner  v.  Garner,  Busbee,  Eq.  1. 

358 


CHAP.  VII.]   TRUST  FROM  GIFT  OF  TRUST  PROPERTY.   [§  241. 

low  tlic  property  and  execute  the  trust  by  the  appointment  of 
new  trustees  or  otherwise.^ 

§  241.  Another  instance  of  a  constructive  trust  without 
fraud  is  where  a  person  receives  the  trust  property  from  the 
trustee  without  notice  of  the  trust,  by  way  of  voluntary  gift 
or  without  paying  a  valuable  consideration.  If  such  person 
had  notice  of  the  trust,  it  would  be  a  fraud  to  receive  the 
trust  fund  even  if  he  paid  a  valuable  consideration,  and  he 
would  be  held  as  a  constructive  trustee  ;2  but  if  he  paid  a 
valuable  consideration  without  notice,  he  would  hold  the 
property  unaffected  by  the  trust. ^  And  if  he  receives  the 
property  without  paying  a  valuable  consideration,  and  with- 
out notice,  equity  holds  the  absence  of  a  consideration  as 
equivalent  to  notice,  and  construes  the  taker  into  a  trustee, 
and  liable  as  such  to  the  same  extent  as  the  trustee  from 
whom  he  took  it.*  But  if  a  person  comes  into  possession  of 
the  trust  property,  not  by,  under,  or  through  the  trustee, 
but  against  him,  as  by  disseizing  or  ousting  him,  he  will 
not  be  bound  by  the  trust,  although  he  have  notice  of  it;  for 
the  disseizor  creates  a  title  for  himself  paramount  to  the 
title  of  the  trustee,^  and  all  outstanding  terms  attending  the 
inheritance  will  attend  the  title  of  the  disseizor  until  he  is 
dispossessed  by  some  other  paramount  title. ^  In  States 
where  registry  laws  are  in  force,  the  registry  of  a  deed  from 
a  grantor  who  had  no  right  to  the  land  is  not  constructive 
notice  to  the  true  owner  that  such  deed  has  been  made,  and 
it  is  constructive  notice  only  to  subsequent  purchasers  under 
the  same  grantor.' 

1  Stat.  4  &  5  Will.  IV.  c.  23;  Hughes  v.  Wells,  9  Hare,  749  ;  13  Eng. 
L.  &  Eq.  389. 

*  Ante,  §220. 

8  Ante,  §§  217,  218. 

*  Mansell  r.  Mansell,  2  P.  Wms.  601  ;   Pye  r.  George,  1  P.  Wms.  123. 
6  Finch's  Case,  4  lust.  85 ;   Sugd.  Gilb.  Uses,  429. 

0  Reynolds  v.  Jones,  2  S.  &  S.  20G. 

'  Batos  '-.Norcross,  14  Pick.  225;  Tilton  r.  Hunter,  11  Shep.  29;  .Stuy- 
vesant  r.  Hall,  2  Barb.  Ch.  151 ;  Keller  r.  Nutz,  5  S.  &  R.  246  ;  Woods  v. 
Farmene,  7  Watts,  382  ;  Crockett  v.  McGuire,  10  Miss.  34. 

359 


§  242.] 


TRUSTS   BY   EQUITABLE   CONSTRUCTION.       [CHAP.   VII. 


§  242.  Analogous  to  the  gift  or  sale  of  the  trust  property 
by  trustees  is  the  right  of  dealing  with  its  property  by  a  cor- 
poration. A  corporation  holds  its  property  in  trust,  first,  to 
pay  its  creditors,  and,  second,  to  distribute  to  its  stockholders 
pro  rata  J  (a)  If  therefore  a  corporation  should  dissolve,  and 
divide  its  property  among  its  shareholders  without  first  pay- 
ing its  debts,  equity  would  enforce  the  claims  of  its  creditors 
by  converting  all  persons,  except  bona  fide  purchasers  for 
value,   to  whom  its   property  had  come,   into  trustees,  and 

1  National  Bauk,  &c.  v.  Lake  Shore,  &c.  R.  R.  Co.,  21  Ohio  St.  232. 


(fl)  A  corporation  is  so  far  a 
trustee  for  its  stockholders  that  a 
minority  thereof  may  have  relief 
iu  equity  when  the  acts  of  the  cor- 
poration, through  the  majority  of 
its  stockholders,  is  fraudulent  or 
oppressive  towards  them.  Menier 
V.  Hooper's  Tel.  Works,  L.  R.  9 
Ch.  350 ;  Gamble  v.  Queen's  County 
W.  Co.,  123  N.  Y.  91  ;  Sage  ;;. 
Culver,  147  N.  Y.  241;  Hawes  v. 
Oakland,  104  U.  S.  450;  Mason 
V.  Pewabic  M.  Co.,  133  U.  S.  50; 
145  U.  S.  348;  Brewer  v.  Boston 
Theatre,  104  Mass.  378.  And  a 
corporation  which  purchases  a  ma- 
jority of  the  stock  of  another  cor- 
poration assumes  the  same  trust 
relation  towards  the  latter's  minor- 
ity stockholders.  Farmers'  L.  &  T. 
Co.  V.  New  York  &  N.  Ry.  Co., 
150  N.  Y.  410. 

A  corporation  is  sometimes  said 
to  hold  its  property  as  a  trust  fund 
for  its  creditors;  but  this  applies 
no  more  strongly  than  in  the  case 
of  an  ordinary  debtor,  and  only 
•when  the  corporation  is  insolvent. 
HoUins  V.  Brierfield  Coal  Co.,  150 
U.  S.  371 ;  Handley  v.  Stutz,  139 
U.  S.  417;  Walker  r.  Miller,  59 
F.  R.  869;  Chattanooga,  &c.  R. 
360 


Co.  V.  Evans,  66  id.  809;  In  re 
Brockway  Manuf.  Co.,  89  Maine, 
121 ;  Fear  v.  Bartlett,  81  Md.  435  ; 
O'Bear  Jewelry  Co.  v.  Volfer,  106 
Ala.  205 ;  Ballin  v.  Merchants'  Ex- 
change Bank,  89  Wis.  278;  John 
V.  Farwell  Co.  r.  Sweetzer,  10  Col 
App.  421;  Hospes  v.  Northwestern 
Manuf.  Co.,  48  Minn.  174;  Mem 
phis  Barrel  Co.  v.  W^ard,  99  Tenn 
172  ;  25  Am.  L.  Rev.  749.  A  for 
eign  corporation  may  be  a  trustee 
See  Pennsylvania  Ins.  Co.  i'.  Bau' 
erle,  143  111.  459  ;  Farmers'  L.  &  T 
Co.  V.  Lake  St.  Ry.  Co.,  68  III.  App, 
666  ;  Glaser  v.  Priest,  29  Mo.  App 
1 ;  Butler  v.  Harrison  Land  Co. 
139  Mo.  467  ;  Peynado  r.  Penaydo, 
82  Ky.  5 ;  Deriuger  v.  Deringer 
5  Houst.  416;  Ames  v.  Heslet,  19 
Mont.   188. 

Where  numerous  copies  of  a 
pamphlet  were  issued  by  a  fraternal 
beneficiary  association,  stating  that 
a  certain  fund  was  held  by  it  as  a 
trust  fund  solely  for  the  payment 
of  matured  certificates,  &c.,  the 
pamphlet  was  held  admissible  in 
evidence  to  show  that  its  chief 
officer  knew  the  fund  to  be  held 
in  trust.  Putnam  v.  Gunning,  162 
Mass.  552,  554. 


CHAP.   VII.]      TRUST   FROM   GIFT   OF  TRUST   PROPERTY.  [§  242. 

would  compel  them  to  account  for  the  proi)erty  and  contribute 
to  the  payment  of  the  debts  of  tlie  corporation  to  the  extent 
of  its  property  in  their  hands. ^  In  England,  the  doctrine  of 
constructive  trusts  is  not  enforced  aj^ainst  the  Bank  of  Eng- 
land in  regard  to  its  stock  standing  u[)on  its  books;  the  bank 
is  bound  to  recognize  only  the  person  who  has  the  legal  title.  ^ 
But  Chief  Justice  Taney  said  that  the  decisions  as  to  the 
Bank  of  England  were  exceptions  depending  upon  the  policy 
of  the  acts  of  parliament  in  reference  to  the  bank,  and  that 
certainly  none  of  the  English  cases  convey  the  idea  that, 
upon  general  principles  of  law,  a  bank  is  not  bound  to  notice 
a  trust  of  its  own  stocks,  and  must  look  only  at  the  legal 
estate.^  In  the  United  States  it  is  well  established,  that  if 
a  corporation  that  requires  a  transfer  of  its  stock  to  be  made 
by  its  own  oflicers  u{)on  its  own  books  permits  a  transfer  to 
be  made,  by  an  executor,  trustee,  or  guardian,  of  stock  held 
by  such  persons  in  a  fiduciary  ca})acity,  such  corporation, 
knowing  the  trust,  and  that  the  transfer  is  made  for  purposes 
other  than  such  trust,  will  be  held  in  equity  as  a  constructive 
trustee  of  the  stock  thus  wrongfully  conveyed,  and  will  be 
liable  to  make  it  good  to  the  cestui  que  trust. ^  (a)     And  if  a 

1  Miimma  r.  Potomac  Co.,  8  Pet.  281  ;  Vose  v.  Grant,  15  Mass.  515 ; 
Spear  v.  Grant,  16  Mass.  9  ;  Wood  v.  Dummer,  -3  Mason,  308;  2  Story's 
£q.  Jur.  §  1252 ;  Hill  i:  Fogg,  41  Mo.  562  ;  Hastings  v.  Drew,  76  N.  Y.  9. 

2  Pearson  r.  B'k  of  Eng.,  2  Bro.  Ch.  529  ;  Hartga  *•.  B'k  of  Eng.,  3  Ves. 
Jr.  55  ;  B'k  of  Eng.  r.  Parsons,  5  Ves.  608;  Austin  v.  B'k  of  Eng.,  8 Ves. 
522;  B'k  of  Eng.  r.  Lunn,  15  Ves.  583;  Bristed  v.  Williams,  3  Hare,  235; 
Humberstone  c.  Chase,  2  Y.  &  C.  209 ;  Franklin  /•.  B'k  of  Eng.,  9  B.  &  C. 
156;  B'k  of  Eng.  v.  Moffat,  3  Bro.  Ch.  260;  Pearson  v.  B'k  of  Eng.,  2  Cox, 
178;  Rider  r.  Kidder,  10  Ves.  369;  Ripley  r.  Waterworth,  7  Ves.  440; 
Stat.  4  W.  &  M.  c.  3,  §  10;  5  W.  &  M.  c.  20,  §  20;  1  Geo.  I.  St.  2,c.  19, 
§  12;  .30  Geo.  II.  c.  19,  §  49  ;  7  Will.  IV.  &  1  Vic.  c.  26;  8  &  9  Vic.  c. 
97;  Lewin  on  Trusts  (2d  Am.  ed.),  32. 

8  Lowry  v.  Commercial  B'k,  3  Bankers'  Mag.  201 ;  10  Pa.  Law  Jour. 
(3  Am.  L.  J.  N.  8.)  111. 

4  JNlechanics'  B'k  v.  Seton,  1  Pet.  299 ;  Porter  i:  B'k  of  Rutland,  19  Vt. 

(n)  See     Lowell,     Transfer     of    §  323   et  set]. ;    1  Ames   ou    Trusts 
Stock,    §§    151,    242;     1    Cook    on     (2d  ed.),  414. 
Stock   and   Stockholders  (3d  ed.), 

361 


§  242.]  TRUSTS   BY    EQUITABLE    CONSTRUCTION.       [CIIAP.   VII. 

cor[»oration  negligently  enter  the  names  of  the  parties  upon 
its  books,  in  such  manner  that  the  stock  is  improperly  trans- 
ferred, it  will  be  liable  as  a  constructive  trustee.  ^  Accord- 
ingly a  corporation  has  a  right  to  require  from  all  fiduciary 
holders  of  stock  evidence  of  their  authority  to  make  the 
transfer. 2  It  has  been  held  that  the  mere  addition  of  the 
word  "  trustee, "  without  any  reference  to  the  terms  of  the  trust 
or  the  persons  of  the  cestuis  que  trust,  is  not  sufficient  notice 
to  a  bank  to  render  it  liable  in  case  the  stock  is  wrongfully 
transferred  by  the  holder  ;3  and  it  is  said  that,  as  a  guardian 
has  a  right  to  sell  the  personal  property  of  his  ward,  a  corpora- 
tion is  not  liable  if  he  wrongfully  transfers  the  stock  on  its 
books.*  If  purchasers  of  stock  in  a  corporation  have  notice 
that  their  vendors  are  trustees,  they  will  be  held  as  construc- 
tive trustees ;  and  if  the  cei-tificates  are  passed  over  to  the 
purchaser  wath  the  word  "  trustee  "  added  to  the  name  of  the 
seller,  the  purchaser  is  bound  to  inquire  into  the  particulars 
of  the  trust,  and  he  has  such  notice  as  will  bind  him  as  a 
trustee  if  the  sale  was  wrongfully  made.^  But  if  the  pur- 
chaser does  not  see  the  certificates  of  the  stock  in  the  seller's 
hands,  as  if  the  seller  himself  transfers  the  stock  upon  the 
books  of  the  company,  and  brings  to  the  purchaser  new  cer- 
tificates that  he  is  entitled  to  so  many  shares,  the  purchaser 
would  not  be  affected  with  notice,  and  would  not  be  held  as 
a  trustee.^ 

410;  Albert  v.  Savings  B'k,  1  MJ.  Ch.  407;  2  Md.  160;  Farmers'  B'k  v. 
Wayman,  5  Gill,  356  ;  Atkinson  v.  Atkinson,  8  Allen,  15;  Loring  r.  Salis- 
bury Mills,  125  Mass.  138 ;  Holden  v.  New  York  &  Erie  Bank,  72  N.Y.  286. 
^  Farmers'  B'k  v.  Wayman,  5  Gill,  356. 

2  Bayard  v.  Farmers'  &  ]\Iech.  Nat.  B"k,  2  Leg.  Int.  164. 

3  Albert  v.  Savings  B'k,  1  Md.  Ch.  407 ;  2  Md.  160.  But  see  to  the 
contrary,  Walsh  v.  Stille,  2  Pars.  Eq.  17. 

*  B'k  of  Virginia  v.  Craig,  6  Leigh,  339.  But  see  Atkinson  v.  Atkin- 
son, 8  Allen,  15.  In  the  last  case,  however,  the  transfer  was  after  the 
removal  of  the  guardian  and  the  appointment  of  another  in  his  place. 

5  Walsh  V.  Stille,  2  Pars.  Eq.  17;  Reeder  v.  Barr,  4  Ham.  446;  Simons 
V.  S.  W.  Railway  B'k,  2  Am.  Law  Reg.  546;  Atkinson  v.  Atkinson,  10 
Allen,  15. 

6  Lowry  v.  Commercial  B'k,  3  Bankers'  Mag.  2111 ;  10  Pa.  Law  Jour. 
Ill ;  Albert  v.  Savings  B'k,  2  Md.  160 ;  Atkinson  v.  Atkinson,  10  Alien,  15. 

362 


CHAP.    VII.]  CONVEYANCE    AS   SECURITY.  [§  24.3. 

§  243.  Af^ain,  if  one  receives  a  conveyance  of  lands  or 
other  property  absolute  in  form,  but  really  as  security  for  a 
debt,  he  will  hold  the  legal  title  in  trust  for  the  grantor  after 
the  payment  of  the  debt,  and  before  a  reconveyance.'  So,  if 
one  receives  personal  property,  agreeing  to  hold  it  for  an- 
other, or  to  sell  it  and  pay  the  proceeds  to  the  holder  of  a 
note,  draft,  or  other  debt,  he  becomes  a  trustee,  and  a  bill 
in  equity  may  be  maintained  against  him  and  his  pledges  to 
enforce  the  trust.^  But  if  such  conveyance  is  fraudulent  and 
void,  the  bona  fide  holder  of  the  note  or  draft  cannot  enforce 
the  trust. ^  In  p]ngland,  upon  the  death  of  the  mortgagee 
the  mortgage  debt  goes  to  his  personal  representatives,  Ijut 
the  fee  in  the  mortgaged  real  estate  descends  to  his  heirs,  if 
not  otherwise  disposed  of;  but  his  heirs  hold  it  upon  a 
constructive  trust,  as  security  for  the  debt,  which  has  gone 
to  his  executors  or  administrators.^  {a)  In  nearly  all  the 
United  States,  both  the  debt  and  the  mortgage  security 
are  chattel  interests,  and  go  to  the  executors  or  administra- 
tors, and  not  to  the  heirs, ^  and  payment  of  the  mortgage 
debt  discharges-  the  mortgage ;  but  while  the  mortgagee  is 
in  possession,  he  is  a  constructive  trustee  up  to  the  time 

1  Maverick,  &c.   Soc.  v.  Lovejoy,  G  Allen,  163 ;  Baldwin  v.  Bannister, 

3  P.  Wms.  251 ;  Poole  i'.  Pass,  1  Beav.  GOO;  Cru.  Dig.  tit.  15;  ]\Iort.  c.  :3, 
§  5,  tit.  15,  c.  2,  §  39;  Wilkinson  v.  Stewart,  30  111.  48;  Smyth  v.  Car- 
lisle, IG  N.  H.  4G4. 

2  Michigan  State  Bank  v.  Gardner,  15  Gray,  362  ;  Ulman  v.  Barnard, 
7  Gray,  551;  IMartiu  r.  Coles,  1  M.  &  S.  1-10  ;  Graham  v.  Dyster,  G  :\I.  & 
S.  1;  Rodriquez  v.  Ilefferman,  5  Johns.  Ch.  417;  Do  AVolf  v.  Gardner,  12 
Cush.  19 ;  Ellis  V.  Lamine,  42  Mo.  153;  Petersham  i-.  Tash,  2  Stra.  117S; 
Warner  v.  Martin,  11  How.  221  ;  Evans  r.  Potter,  2  Gall.  13;  Daubigny 
r.  Duval,  5  T.  U.  604  ;  Guerreiro  v.  Peile,  3  B.  &  Aid.  616;  De  Bouchout 
V.  Goldsmid,  5  Ves.  211 ;  Skinner  v.  Dodge,  4  lien.  &  M.  423;  Newson  r. 
Thornton,  G  East,  17;  McCoinbie  v.  Davies,  7  East,  5;  Kinder  v.  Shaw, 
2  Mass.  398;  Van  Amringe  v.  Peabody,  1  Mason,  410. 

8  Potter  V.  McDowall,  43  Mo.  93. 

*  Ellis  V.  Guavas,  2  Ch.  Cas.  GO;  Chase  v.  Lockerman,  11  G.  &  J.  1S5. 

6  See  Greenleaf 's  Cruise,  Dig.  tit.  15,  c.  2,  §§  39,  40,  and  notes ;  4  Kent, 
ICO,  194. 

(a)  As  to  the  equitable  mortgage  and  notes;  Bullowa  c  Orgo  (X.  J. 
created  by  deposit  of  title-deeds,  see    Eq.),  41  Atl.  491. 

4  Kent  Com.  (14th  ed.),  150,  151, 

363 


§  244]  TRUSTS    BY    EQUITABLE    CONSTKUCTION.       [CHAP.    YII. 

that  the  mortgagor's  equity  of  redemption  expires,  and  ho 
is  bound  to  account  for  the  rents  and  profits  in  due  course  of 
administration.'  It  has  even  been  thought  that  he  is  liable 
for  the  rents  and  profits  after  he  has  transferred  his  mort- 
gage ;2  but,  as  he  has  a  right  to  assign  his  mortgage  without 
notice  to  the  mortgagor,  it  would  seem  that  he  would  not  be 
liable  for  anything  after  he  had  assigned  his  mortgage  and 
the  possession. 3  If  a  mortgagee  assigns  the  mortgage  debt 
but  not  the  mortgage,  he  holds  the  title  to  the  mortgaged 
premises  in  trust  for  the  owner  of  the  debt.*  So  one  who 
takes  a  mortgagee's  title  holds  it  in  trust  for  the  owner  of 
the  debt  which  the  mortgage  was  intended  to  secure.^ 

§  244.  At  common  law,  if  a  testator  appointed  his  debtor 
to  be  the  executor  of  his  will,  the  debt  was  extinguished,  on 
the  ground  that,  as  the  executor  could  not  maintain  an  action 
against  himself,  the  remedy  was  gone,  and  where  the  remedy 
is  gone,  the  debt  is  gone.^  Equity,  however,  construes  the 
debtor,  although  he  is  executor,  to  be  a  trustee,  and  the 
creditors,  legatees,  and  next  of  kin  of  the  testator  can  en- 
force the  trust  by  compelling  the  executor  to  account  for  the 
amount  of  the  debt  due  from  him  to  the  testator.'^  In  most 
of  the  United  States  this  matter  is  regulated  by  statute,  and 
the  executor  may  be  required  by  the  probate  court  to  put 
the  amount  of  his  debt  to  the  testator  into  his  inventory,  or 
the  court  of  probate  may  require  the   executor  to  charge 

1  Coppring  v.  Cooke,  1  Vern.  270;  Bentham  v.  Haincourt,  Pr.  Ch.  30; 
Parker  v.  Calcroft,  6  Madd.  11;  Hughes  v.  Williams,  12  Ves.  493;  Mad- 
docks  V.  Wren,  2  Ch.  R.  109. 

2  Venables  v.  Foyle,  1  Ch.  Cas.  3. 

8  Ringham  v.  Lee,  15  Sim.  400;  Re  Radcliffe,  22  Beav.  201. 

4  Torrey  v.  Morrill,  53  Vt.  331. 

fi  Jordan  v.  Cheney,  74  Maine,  359. 

6  2  Williams'  Ex'rs,  1129  ;  2  Story's  Eq.  Jur.  §  1209. 

'  Berry  v.  Usher,  11  Ves.  90;  Simmons  v.  Gutteridge,  13  Ves.  264; 
Carey  v.  Goodinge,  3  Bro.  Ch.  Ill;  Errington  v.  Evans,  2  Dick.  456; 
Flud  V.  Rumsey,  Yel.  160;  Phillips  v.  Phillips,  Freem.  11;  1  Ch.  Cas. 
292;  Brown  v.  Selwyn,  Caa.  t.  Talb.  203;  3  Bro.  P.  C.  607;  2  Story's 
Eq.  Jul-.  §  1209. 
364 


CHAP.   Yir.]  TRUSTEE   DE   SON   TORT.  [§  245. 

himself  with  the  amount  of  his  debt  in  his  account.'  And 
so  legatees  and  distributees  may  become  constructive  trustees 
for  creditors  of  the  estate,  if  the  executor  or  administrator, 
by  accident  or  mistake,  pays  over  or  distributes  the  estate 
before  all  deljts  are  j)aid.  The  executor  may  be  sued  at  law 
in  such  case  by  the  creditor,  and  he  may  recover  over  against 
the  persons  to  whom  he  has  paid  the  estate.  In  equity,  how- 
ever, creditors  can  follow  the  fund  lialilc  for  their  del)ts  into 
the  hands  of  the  persons  to  whom  it  has  come,  and  treat 
them  as  constructive  trustees,  as  they  are  not  entitled  to 
anything  out  of  the  estate  till  the  debts  are  first  satisfied.  ^ 

§  245.  A  person  may  become  a  trustee  by  construction,  by 
intermeddling  with,  and  assuming  the  management  of,  prop- 
erty without  authority.  Such  persons  are  trustees  de  son 
tort,  as  persons  who  assume  to  deal  with  a  deceased  person's 
estate  without  authority  arc  administrators  de  son  tort. (a) 

1  Pusey  V.  Clerason,  9  S.  &  R.  201  ;  Griffith  v.  Chew,  8  S.  &  R.  32; 
Ilill  on  Trustees,  172,  notes  (4th  Am.  ed.) . 

2  2  Story's  Eq.  Jur.  §§  1250, 1251 ;  Russell  v.  Clark,  7  Cranch,  09  ;  Mc- 
Call  V.  Harrison,  1  I?rock.  12G;  Buck  v.  Swazey,  35  Me.  52  ;  Riddle  v. 
Mandeville,  5  Cranch,  329  ;  Anon.  1  Vern.  162  ;  Newman  v.  Barton,  2  Vem. 
205  ;  Noel  v.  Robinson,  1  Vern.  94;  White  School  House  v.  Post,  31  Conn. 
240;  Boddy  v.  Lefevre,  1  Hare,  002,  n. 

(a)  Such  a  trustee  is  also  styled  Tennant,  43  W.  Va.  547.  Thus,  a 
a  trustee  ex  malcjicio.  See  Larmon  wife  who  procures  to  herself  the 
V.  Knight,  140  111.  232  ;  Russell  v.  absolute  legal  title  to  hor  husband's 
McCall,  141  N.  Y.  437;  Barry  r.  property,  which  he  intended  to  de- 
Hill,  166  Penn.  St.  344  ;  Cutler  vise  to  his  own  heirs,  but  trans- 
r.  Babcock,  81  Wis.  195  ;  Rollins  v.  ferred  to  her  on  her  promise  to  use 
Mitchell,  52  Minn.  41,50;  Luse  r.  it  during  her  life  and  devise  the 
Reed,  63  Minn.  5  ;  Edwards  v.  Cul-  part  remaining  to  his  heirs,  will  be 
bertson,lll  N.C.  342;  Gruhnw.Rich-  charged  with  a  trust  in  inntum  in 
ardson,  12S  111.  178  ;  Orth  v.  Orth,  the  property  on  a  bill  in  equity  by 
145Tnd.  181  ;  Kagsdale  r.  Ragsdale,  his  heirs.  Gilpatrick  v.  Glidden, 
68  Miss.  92;  Kincaid  c.  Thompson,  81  Maine,  137;  Thompson  y.  Thomiv 
13  Wash.  377  ;  Roggenkamp  v.  son,  107  Ala.  163.  This  form  of 
Roggenkamp,  68  F.  R.  605 ;  Leigh-  trust  properly  depends  only  upon 
ton  ('.  Leighton,  91  Maine,  593  ;  actual  deceit.  Davis  v.  Stambaugh, 
Bailey  r.  Bailey,  07  Vt.  494  ;  Brown  163  111.  557.  Such  a  trust  does  not 
V.  Doane,  83  Ga.  32  ;  Teunaut  v.  arise  from  a  mere  refusal  to  perform 

365 


§  245.]  TRUSTS    BY    EQUITABLE    CONSTRUCTION.       [CHAP.    VII. 

Thus  an  administrator  has  no  right  to  interfere  with  the 
real  estate  of  an  intestate  unless  it  is  wanted  to  pay  debts; 
and  if  he  assume  to  act  in  relation  to  the  real  estate  as  a 
trustee,  those  interested  may  treat  him  as  such,  and  he  can- 
not demur  to  a  bill  charging  him  with  neglect  of  duty,  and 
praying  for  his  removal.^  If  one  enters  upon  an  infant's 
lands,  and  takes  the  rents  and  profits,  he  may  be  charged  as 
a  guardian  or  trustee,^  (a)  and  so  if  one  takes  personal  prop- 
erty. ^  If  a  deceased  person  holds  money  or  other  property 
in  trust  for  another,  and  his  heir,  executor,  administrator, 
or  other  person  assume  possession  of  such  property,  a  con- 
structive trust  will  be  imposed  upon  them.^  During  the 
possession  and  management  by  such  constructive  trustees 
they  are  subject  to  the  same  rules  and  remedies  as  other 
trustees;^  and  they  cannot  avoid  their  liability  by  showing 
that  they  were  not  in  fact  trustees,^  nor  can  they  set  up  the 
statute  of  limitations,'^  Of  course,  such  unauthorized  per- 
sons will  always  be  liable  to  be  deprived  of  the  possession  at 
the  suit  of  those  beneficially  interested,  and  they  will  be 
liable  for  all  the  costs,  expenses,  and  damages  which  their 
unauthorized  intermeddling  may  have  occasioned.  Still 
there  may  be  cases  where  an  unauthorized  person  may  inter- 
fere from  necessity  to  preserve  and  protect  the  property.     In 

1  Le  Fort  v.   Delafield,  3  Edw.  31 ;    McCoy  v.  Scott,  2  Rawle,  222  ; 
Schwartz's  Estate,  14  Penn.  St.  42  ;  People  v.  Iloughtaling,  7  Cal.  348. 

2  Wyllie  V.  Ellice,  1  Hare,  505 ;   Drury  v.  Connor,  1  11.  &  G.  220  ; 
Bloomfield  v.  Eyre,  8  Beav.  250. 

3  Chaney  v.  Smallwood,  1  Gill,  367 ;  Goodhue  v.  Barnwell,  Rice,  Eq. 
198  ;  Bennett  v.  Austin,  81  N.  Y.  308. 

4  White  School  House  v.  Post,  31  Conn.  248 ;  People  v.  Houghtaling, 
7  Cal.  348. 

5  Wilson  V.  ]\Ioore,  1  Myl.  &  K.  127. 

6  Rackham  v.  Siddall,  1  Mac.  &  G.  607;  2HaU&T.  44  ;  16  Sim.  297; 
Hope  V.  Liddell,  21  Beav.  183. 

'  Goodhue  v.  Barnwell,  Rice,  Eq.  198. 

an   oral  contract.      Barry  v.  Hill,  (a)  Thornton  v,  Gilman  (K  H.), 

166  Penn.    St.  344;  Dunn  v.  Zwil-     39  Atl.  900. 
ling,   94  Iowa,   233;  Goldsmith  v. 
Goldsmith,  145  N.  Y.  313,  318. 
366 


CHAP.   VII.] 


TRUSTEE   DE   SON    TOUT. 


[§  24G. 


such  cases  courts  of  c(juity  have  i)Ower  to  do  exact  justice  by 
decrees  as  to  costs,  comj)cnsatiou,  and  other  similar  matters. 
In  all  cases  a  person  beneficially  interested  coming  into 
equity  must  do  equity,  and  join  all  who  have  interfered  with 
the  possession;  and  he  cannot  |)rocecd  against  one  alone  as 
at  law  for  a  trespass,  and  compel  one  to  bear  the  whole 
burden  of  the  wron-i-ful  intrusion.' 


§  24G.  If  an  agent  is  employed  by  a  trustee  and  thus  comes 
into  possession  of  the  j)roperty,  he  will  be  accountaljlc  to  his 
employer,  and  will  not  be  responsible  as  a  constructive 
trustee. 2  But  if  such  agent  should  act  fraudulently  or  col- 
lusively  he  might  be  made  a  trustee  by  construction,  and,  as 
such,  accountable  to  the  cestui  que  trust.^  (a) 

^  Wyllie  V.  Ellice,  6  Hare,  515 ;  Phene  v.  Gillon,  5  Hare,  5. 

2  Keane  v.  Kobarts,  4  Madd.  332  ;  Nickolson  v.  Knowles,  5  ]\Iadd.  47; 
Myler  v.  Fitzpatrick,  6  Madd.  360;  Davis  v.  Spurliug,  1  11.  &  M.  64;  Tarn. 
199;  Crisp  v.  Spranger,  Nels.  109;  Saville  v.  Tancred,  3  Swanst.  141; 
Fyler  v.  Fyler,  3  Beav.  550;  Maw  v.  Pearson,  28  Beav.  196  ;  Lockwood  r. 
Abdy,  14  Siin.  437;  Ex  parte  Burton,  3  Mont.,  D.  &  De  Gex,  361;  Re 
Bunting,  2  Ad.  &  El.  467. 

8  Fyler  v.  Fyler,  3  Beav.  550 ;  Att.  Gen.  r.  Leicester,  7  Beav.  171 ; 
Hardy  v.  Caly,  33  Beav.  365 ;  Bridgraan  v.  Gill,  24  Beav.  302 ;  Portlock 
V.  Gardner,  1  Hare,  606 ;  Ex  parte  Woodin,  3  Mont..  D.  &  De  G.  399 ; 
Bodenham  v.  Hoskyns,  2  De  G.,  M.  &  G.  903  ;  Panell  v.  Hurley,  2  Coll. 
241;  Alleyne  r.  Darcy,  4  Led.  Ch.  199,  5  Ired.  Ch.  56. 

(a)  Pinney  v.  Newton,  66  Conn. 
Ill;  infra,  §  813.  Strangers  to  the 
management  of  the  trust,  though 
agents  of  tlie  trustees,  are  not  con- 
structive trustees  because  they  fol- 
low the  instructions  of  tiie  trustees 
in  matters  within  their  legal  powers, 


though  the  court  may  not  approve 
of  the  trustees'  action.  Hence  a 
solicitor  to  a  trustee  is  under  no 
greater  liability  to  account  as  a  con- 
structive trustee  than  any  other 
stranger  to  the  trust.  Barnes  v. 
Addy,  L.  R.  9  Ch.  244 ;  In  re  Blun- 
dcll,  40  Ch.  D.  370  ;  Soar  v.  Ash- 
well,  [1893]  2  Q    B.  390;    Koche- 


foucauld  V.  Boustead,  [1897]  1  Ch. 
196  ;  Friend  v.  Young,  2  id.  421. 
An  agent  of  the  trustee  who  secures 
to  himself  a  personal  benefit  from 
the  trust  estate  is  responsible  as  a 
trustee  to  the  cestui  que  Irusl.  Leh- 
mann  v.  llothbarth,  111  111.  185  ; 
Shearman  v.  IMorrison,  149  Penn. 
St.  386.  If  such  agent  accepts  a 
delegation  of  the  trust,  and  fraudu- 
lently takes  part  in  a  breach  of 
trust,  he  may  be  held  liable  to  the 
cestui  que  trust  as  a  trustee  de  son 
tort.  In  re  Banu-y,  [1892]  2  Ch. 
265. 

Trustees  are  liable  personally  for 
367 


§  247.]  TRUSTS   BY   EQUITABLE    CONSTRUCTION.       [CIIAP.    VII. 

§  246  a.  If  a  vendor  undertakes  to  sell  a  good  title  to 
land  for  a  valuable  consideration,  and  his  title  is  defective, 
but  he  afterwards  obtains  a  perfect  title,  equity  will  compel 
him  to  hold  it  in  trust  for  his  vendee.^  If,  however,  such 
vendor  had  conveyed  the  land  with  full  covenants  of  war- 
ranty, the  title  which  he  afterwards  obtains  will  enure  for 
the  benefit  of  his  grantee,  and  the  vendor  will  be  estopped 
by  his  covenants  from  setting  up  his  after-acquired  title 
against  his  vendee. ^  And  if  a  purchaser  of  land  with  notice 
of  a  prior  mortgage  afterwards  sells  the  same  to  an  innocent 
purchaser  for  its  full  value,  equity  will  compel  him  to  hold 
the  proceeds  in  trust  for  the  mortgagee.^  So,  if  one  procures 
and  puts  on  record  a  deed  of  land  with  notice  of  a  prior  deed 
and  in  fraud  of  a  prior  purchaser,  equity  will  compel  him  to 
hold  the  legal  title  in  trust  for  the  first  grantee.*  So,  if  a 
person  sells  stock,  and  it  is  conveyed  in  such  a  manner  that 
the  conveyance  is  void  and  the  legal  title  is  still  in  the 
vendor,  he  will  hold  it  in  trust  for  the  actual  vendee,  and  he 
may  be  compelled  to  take  the  title  and  assume  the  burdens.^ 

§  247.  Where  a  person  has  possession  of  title-deeds  or 
other  documents  in  relation  to  property,  and  other  persons 
are  interested  in  the  same  property,  and  claim  title  through 
or  under  the  same  papers,  the  person  having  the  possession  of 
the  papers  is  a  constructive  trustee  for  the  other  persons 

1  Clark  V.  Martin,  49  Penn.  St.  299;  Hope  v.  Stone,  10Minn.l4;  Doyle 
V.  Peerless,  44  Barb.  239  ;  Kelley  v.  Jenness,  50  Maine,  455  ;  Cobb  v.  Stew- 
art, 4  Met.  (Ky.)  255 ;  Dalheguey  v.  Tabor,  22  Cal.  279 ;  Wasby  v.  Fore- 
man, 30  Cal.  90;  Kane  County  v.  Herrington,  50  111.  232. 

2  Somes  V.  Skinner,  3  Pick.  51 ;  White  v.  Patten,  24  Pick.  324 ;  2  Smith, 
Lead.  Cases  (4  Amer.  ed.),  550;  Xash  i,-.  Spofford,  8  Met.  192. 

3  Moshier  v.  Knox  College,  32  111.  155. 

4  Troy  City  Bank  v.  Wilcox,  24  Wis.  671. 
6  Brown  v.  Black,  L.  R.  15  Eq.  3G7. 

their  agents'  torts  in  the   manage-  McRoberts    v.    Carneal   (Ky.),   44 

ment  of  the  trust  business,  as  their  S.    W.   442  ;    Blewitt   v.    Olin,    14 

negligence  or  that  of  their  servants  Daly,    351 ;    Norling   v.    Allee,    13 

does    not    bind    the    trust    estate.  N.  Y.  S.  791  ;  Low  r.  Gemley,  18 

Baker  v.  Tibbetts,  162  Mass.  468  ;  Can.  Sup.  685. 
368 


CHAP.  VII.] 


TRUSTEE    DE    SON   TOKT. 


[§  247  a. 


interested  in  the  same  property,  and  a  court  of  equity  will 
compel  him  to  produce  tlic  deeds  or  papers  at  the  suit  of 
those  claiming  an  interest  in  the  common  property.^ 

§  247  a.  If  a  person  becomes  surety  for  the  debt  of  another, 
and  the  creditor  holds  mortgages  on  other  securities  from 
the  debtor  for  the  same  debt,  the  surety,  if  he  pay  the  debt, 
has  a  right  to  claim  that  the  creditor  shall  hold  the  securi- 
ties in  trust  for  him;  in  other M'ords,  the  surety  upon  paying 
the  debt  is  subrogated  into  the  rights  of  the  original  credi- 
tor ;2  and  if  an  assignor  receives  payment  for  a  chose  in 
action  which  he  has  assigned,  he  holds  the  proceeds  in  trust 
for  the  assignee.^  {a)  So,  if  one  sells  the  property  of 
another  and  deposits  the  money  in  bank  in  his  own  name, 
upon  notice  to  the  bank,  by  the  owner  of  the  property,  of  the 
facts,  and  a  demand  for  the  money,  the  bank  becomes  a  quaal 
or  constructive  trustee  for  the  true  owner.* 

1  Lewin  on  Trusts,  156,  157  (5th  Lond.  ed.). 

2  Garnsey  v.  Gardner,  4  Maine,  1G7. 

8  Post,  §  438 ;  Fortescue  v.  Barnett,  3  Myl.  &  K.  30. 

<  Bank  of  Wellsborough  v.  Bache,  71  Penn.  St.  213;  Arnold  v.  Macun- 
gie  Bank,  id.  287;  Twitchell  v.  Drury,  25  Mich.  393  ;  Campan  v.  Campan, 
id.  127. 


(a)  See  supra,  §  60,  n.  (a).  A 
banker  also  has  a  general  lien  upon 
securities  in  his  possession  ;  but 
such  lien  does  not  arise  upon  secu- 
rities accidentally  in  his  possession, 
or  not  in  his  possession  in  the  course 
of  his  business  as  such,  or  where 


the  securities  are  in  his  hands  under 
circumstances,  or  where  there  is  a 
particular  mode  of  dealing,  incon- 
sistent ■with  such  general  lien. 
Reynes  v.  Dumont,  130  U.  S.  354, 
391. 


VOL.  I.  —  24 


369 


§  248.]  TRUSTS .  IMPLIED   FROM   POWERS.  [CHAP.    VIII 


CHAPTER  VIII. 

TRUSTS  THAT   ARISE   BY   CONSTRUCTION   FROM   POWERS. 

§  248.    The  nature  of  powers  that  imply  a  trust. 

§  249.     Court  will  execute  such  powers  as  trusts. 
§§  250,  251.  Instances  of  powers  which  the  court  will  execute  as  trusts. 

§  252.     Instances  of  powers  that  are  not  trusts. 

§  253.  Where  the  power  is  too  uncertain. 

§  254.     The  power  must  be  executed  as  given,  or  it  will  remain  a  trust  to  be  ex- 
ecuted by  the  court. 
§§  255,  256.  In  what  manner  the  court  will  execute  a  trust  arising  out  of  a  power. 

§  257.  Whether  courts  will  distribute  per  stirpes  or  per  capita. 

§  258.  And  whether  to  those  living  at  the  death  of  donor  or  of  the  donee. 

§  248.  Property  is  sometimes  given  to  a  person  with  a 
power  to  dispose  of  it  for  a  particular  purpose,  or  to  a  par- 
ticular class  of  persons,  or  to  certain  persons  to  be  selected 
or  designated  by  the  donee  from  a  particular  class.  If  the 
donee  executes  the  power  and  disposes  of  the  property,  or 
designates  or  selects  the  persons  who  are  to  take  under  the 
gift,  it  goes  as  directed,  and  there  is  no  great  room  for  doubt 
or  question ;  but  if  the  donee  refuses  or  neglects  to  execute 
the  power,  it  becomes  a  grave  inquiry  whether  the  persons  in 
whose  favor  the  power  might  have  been  executed  have  any 
interest  in  the  property,  or  any  remedy  for  the  non-exercise 
of  the  power  by  the  first  taker  or  donee.  In  dealing  with 
the  cases  that  have  arisen  upon  these  inquiries,  courts  have 
distributed  powers  into  mere  powers,  and  powers  coupled 
%vith  a  trust,  or  p)oivers  tvhich  imply  a  trust.^  Mere  powers  are 
purely  discretionary  with  the  donee :  he  may  or  may  not 
exercise  or  execute  them  at  his  sole  will  and  pleasure,  and 
no  court  can  compel  or  control  his  discretion,  or  exercise 
it  in  his  stead   and  place,  if  for  any  reason  he  leaves  the 

1  Brown  v.  Higgs,  8  Ves.  574 ;  White  v.  Wilson,  1  Drew.  298. 
370 


CHAP.   VIII.] 


POWERS   THAT    ARE   TRUSTS. 


[§  248. 


powers  unexecuted.'  (a)  If  the  donee  executes  the  powers, 
but  executes  them  in  a  defective  manner,  courts  may  aid  the 
execution  and  supply  the  defects,  but  they  cannot  exercise 
or  execute  mere  naked  powers  conferred  upon  a  donee. ^  ('') 
It  is  diliferent  with  powers  coupled  with  a  trust,  or  powers 
which  imply  a  trust.  In  this  class  of  cases  the  power  is  so 
given  that  it  is  considered  a  trust  for  the  benefit  of  other 

1  Greenough  v.  Welles,  10  Cush.  570 ;  Eldredge  v.  Heard,  100  Mass. 
582. 

2  Wilkinson  v.  Getty,  13  Iowa,  157;  Arundell  v.  Philpot,  2  Vern.  69; 
Tompkyn  i-.  Sandys,  2  T.  Wms.  228,  n.  ;  Bull  v.  Vardy,  1  Ves.  Jr.  272. 
And  even  if  a  party  intended  to  execute  a  power,  but  is  prevented  by 
sudden  death,  the  court  will  not  execute  the  power.  Pigott  v.  Penrice, 
Com.  250  ;  Gilb.  Eq.  138;  Sugd.  on  Powers,  392. 

(n)  A  trust  which  is  a  personal    May,  107  U.  S.  310 ;  Jones  v.  Jones, 

30  N.  Y.  S.  177 ;  Clark  r.  Clark,  50 
id.  1041.  When  an  absolute  discre- 
tion is  not  clearly  given,  to  be  ex- 
ercised at  the  will  of  the  person 
empowered  to  make  a  sale  or  appro- 
priation of  principal,  an  exercise  of 
a  power,  to  be  valid,  must  be  founded 


confidence  does  not,  on  the  trustee's 
death,  pass  to  his  administrator,  but 
must  be  executed  by  a  trustee  spe- 
cially appointed  for  the  purpose. 
Hayes  v.  Pratt,  147  U.  S.  557; 
Kean  v.  Kean  (Ky.),  19  S.  W.  184  ; 
Thompson  v.  Ballard,  70  Md.  10. 
Discretionary  powers  given  in  dis-  upon  a  reasonable  judgment  as  to 
charge  of  a  trust  are  personal  and    existing  facts  and  reasonable  anti- 


terminate  upon  the  donee's  death. 
Security  Co.  r.  Snow,  70  Conn.  288; 
Gambell  r.  Trippe,  75  Md.  252; 
Sites  r.  Eldredge,  45  N.  J.  Eq.  032. 
But  a  power  to  sell  and  convey  a  fee 
to  any  one  is  a  general  power,  and 
not  a  personal  trust,  and  such  power 
may  be  executed  by  a  successor  or 
by  an  administrator.  Ilinson  r.  Wil- 
liamson, 74  Ala.  180;  Watson  i\ 
Martin,  75  Ala.  500;  Syracuse  S. 
Bank  r.  Porter,  36  Hun,  108;  Clay 
V.  Selah  V.  Jr.  Co.,  14  Wash.  543. 

Equity  may  limit  even  discre- 
tionary powers  to  a  reasonable, 
honest,  and  just  exercise  thereof, 
such  having  been  probably  intended. 
Head  r.  Patterson,  44  N.  J.  Eq.  211  ; 
Re  Stanger,  64  L.  T.  093  ;  3Iay  v. 


cipations  of  the  future,  having  due 
regard  to  the  purposes  for  which 
the  power  was  given,  and  to  the 
rights  of  those  whose  interests  are 
injuriously  affected  by  its  exercise. 
Lovett  V.  Farnham,  109  Mass.  1.  One 
who  is  to  execute  a  power  of  sale  by 
which  the  interests  of  others  will  be 
affected,  must  exercise  not  only  good 
faith,  but  reasonable  care  and  dili- 
gence, and,  if  others  are  injured  by 
the  negligent  exercise  of  the  power, 
they  may  appeal  to  equity  for  re- 
dress. Price  V.  Bassett,  108  Mass. 
598 

(h)  See  In  re  Cunningham  & 
Frayliug,  [1801]  2  Ch.  507;  In  re 
Bryant,  [1894]  1  Ch.  324. 

371 


§  248.] 


TRUSTS   IMPLIED   FROM   TOWERS.  [CHAP.    VIII. 


parties ;  and  when  the  form  of  the  gift  is  such  that  it  can  be 
construed  to  be  a  trust,  the  power  becomes  imperative,  and 
must  be  executed.  Courts  will  not  allow  a  clear  trust  to  fail 
for  want  of  a  trustee ;  nor  will  they  allow  a  trust  to  fail  by 
reason  of  any  act  or  omission  of  the  trustee;  therefore, 
courts  will  not  allow  a  trust  to  fail,  or  to  be  defeated  by  the 
refusal  or  neglect  of  the  trustee  to  execute  a  power,  if  such 
power  is  so  given  that  it  is  reasonably  certain  that  the  donor 
intended  that  it  should  be  exercised.  There  are  mere  powers 
and  mere  trusts.  There  are  also  powers  which  the  party  to 
whom  they  are  given  is  intrusted  with  and  required  to  exe- 
cute. Courts  consider  this  last  kind  of  power  to  partake  so 
much  of  the  character  of  a  trust  to  be  executed,  that  they 
will  not  allow  it  to  fail  by  the  failure  of  the  donee  to  execute 
it,  but  will  execute  it  in  the  place  of  the  donee. ^(a)     Lord 

1  Burgess  v.   Wheate,  1  Wm.  Black.  162;    Sugcl.  on  Pow.   393-398; 
Lucas  V.  Lockhart,  10  Sm.  &  M.  466;    Harrison  v.  Harrison,  2  Grat.  1 ; 


(a)  Randolph  v.  East  Birming- 
ham Land  Co.,  104  Ala.  355 ;  Spitzer 
V.  Spitzer,  56  N.  Y.  S.  470;  Towler 
V.  Towler,  142  X.  Y.  371.  Executors 
may  in  New  York  execute  a  testa- 
mentary power  in  which  a  donee 
is  not  named.  Lesser  v.  Lesser,  32 
N.  Y.  S.  167. 

The  court  will  also  enforce  the 
proper  and  timely  exercise  of  a 
power  which  is  coupled  with  a  trust 
or  duty,  but  will  not  interfere  with 
the  trustee's  discretion  as  to  the 
particular  time  or  manner  of  his 
bona  fide  exercise  of  it.  Tempest  v. 
Camoys,  21  Ch.  D.  571 ;  In  re  Kir- 
wan's  Trusts,  25  Ch.  D.  373 ;  Re  Bur- 
rage,  62  L.  T.  752.  See  Mutual  Life 
Ins.  Co.  *.'.  Everett,  40  N.  J.  Eq.  3-15; 
Towler  v.  Towler,  142  N.  Y.  371 ; 
Jones  V.  Jones,  30  N.  Y.  S.  177  ; 
Correll  v.  Lauterbach,  36  id.  615 ; 
McHan  r.  Ordway,  82  Ala.  463; 
Dillard  v.  Dillard  (Va.),  21  S.  E. 
372 


Rep.  669  ;  Dick  v.  Harby,  48  S.  C. 
516.  A  trustee  cannot  delegate  a  dis- 
cretion, but  may  delegate  a  mere 
ministerial  duty.  Bohlen's  Estate, 
75  Penn.  St.  304;  Gillespie  v.  Smith, 
29  111.  473. 

A  power  coupled  with  an  interest 
or  a  trust  survives  on  the  donor's 
death.  Benneson  v.  Savage,  130  111. 
352  ;  Wilkinson  v.  Buist,  124  Penn. 
St.  253  ;  Sites  r.  Eldredge,  45  X.  J. 
Eq.  632  ;  Herriott  v.  Prime,  87  Hun, 
95  ;  Hilliard  v.  Beattie  (N.  H.),  39 
Atl.  897;  McXeill  v.  McXeill,  43 
W.  Va.  765.  See  upon  such  powers, 
In  re  Hannan's  Co.,  [1896]  2  Ch. 
643  ;  12  Harv.  L.  Rev.  262 ;  Hall  v. 
Gambrill,  88  F.  R.  709  ;  Frink  r. 
Roe,  70  Cal.  296  ;  Lockart  v.  For- 
sythe,  49  Mo.  App.  654 ;  Roland  v. 
Coleman,  76  Ga.  652 ;  Reeves  i'. 
Tappan,  21  S.  C.  1 ;  Bredenburg  v. 
Bardin,  36  S.  C.  197.  It  may  even 
continue  after  the  trust    is    termi- 


CHAP.    VIII.]  POWERS   THAT   ARE   TRUSTS.  [§  248. 

Hardwicke   observed   that  such   powers  ought  rather  to  be 
called   trusts  than  i)0\vcra.^     In   all  cases  these   powers  or 

Grcenough  v.  Welles,  10  Cush.  57G  ;  Ericksou  v.  VVillard,  1  N.  II.  217; 
Harding  u.  Glyn,  1  Aik.  4'J(J  ;  Cruwys  v.  Colinan,  li  Ves.  319;  Forbes  c. 
Ball,  3  Mer.  4:57;  Witts  '•.  Boddingtou,  -i  Bro.  Ch.  95;  Walsh  r.  Walliu- 
ger,  2  R.  &  My.  78;  Gricvesou  v.  Kersopp,  2  Keen,  G54;  Jones  c.  'I'orin, 
6  Sim.  255;  Martin  c.  Swannell,  2  Beav.  249;  Fenwick  c.  Greenwell,  10 
Beav.  412;  Fordyce  r.  Brydges,  10  Beav.  90;  2  Bhill.  497;  Biirrouprh  r. 
Philcox,  5  My.  &  Cr.  73  ;  Falkner  v.  Wynford,  l.'>  L.  J.  Cli.  y  ;  9  .J  ur,  lou'i ; 
Penny  r.  Turner,  15  Sim.  308;  2  Pliill.  493  ;  Alloway  r.  Allovvay,  4  Dr.  k 
War.  3S0 ;  Sahisbury  *-.  Denton,  3  K.  &  J.  535 ;  Joel  v.  Mills,  id.  474 ; 
Reid  V.  Reid,  25  Beav.  4G9  ;  Brown  r.  Higgs,  8  Ves.  574 ;  Babbitt  v.  Bab- 
bitt, 26  N.  J.  Eq.  44.  In  this  case  Lord  Eldon  said,  if  the  power  be  one 
which  it  is  the  duty  of  the  party  to  execute,  made  his  duty  by  the  requisi- 
tion of  the  will,  put  upon  him  as  such  by  the  testator,  who  has  given  him 
an  interest  extensive  enough  to  enable  him  to  discharge  it,  he  is  a  trustee 
for  the  exercise  of  the  power,  and  not  as  having  a  discretion  whether  he 
will  exercise  it  or  not ;  and  the  court  adopts  this  principle  as  to  trusts,  and 
will  not  permit  his  negligence,  accident,  or  other  circumstances  to  disap- 
point the  interest  of  those  for  whose  benefit  he  is  called  upon  to  execute 
it.  In  Att.  Gen.  v.  Downing,  Wilm.  23,  Ld.  Ch.  J.  Wilmot  said,  as  to 
the  ol)jection  that  those  powers  are  personal  to  the  trustees,  and  by 
their  death  become  unexecutable,  they  are  not  powers  but  trusts,  and  there 
is  a  very  essential  difference  betw-een  them.  Powers  are  never  imperative  : 
they  leave  the  acts  to  be  done  at  the  will  of  the  party  to  whom  they  are 
given.  Trusts  are  always  imperative,  and  are  obligatory  uiwn  the  con- 
science of  the  party  intrusted.  The  court  supplies  the  defective  execution 
of  powers,  but  never  the  non-execution  of  them  ;  for  they  are  not  meant  to 
be  optional.  But  a  person  who  creates  a  trust  means  it  shall  be  executed 
at  all  events.  The  individuals  named  as  trustees  are  only  the  nominal 
instruments  to  execute  that  intention,  and  if  they  fail,  either  by  death, 
or  by  being  under  disability,  or  by  refusing  to  act,  the  constitution  has 
provided  a  trustee.  Where  no  trustees  are  appointed  at  all,  the  court 
assumes  the  office.  There  is  some  personality  in  every  choice  of  trustees, 
but  this  personality  is  res  unius  cetatis,  and  if  the  trust  cannot  be  executed 
through  the  medium  which  was  in  the  primary  view  of  the  testator,  it  must 
be  executed  through  the  medium  which  the  constitution  has  substituted  in 
his  place.  Brook  v.  Brook,  3  Sni.  &  Gif.  280;  Withers  r.  Yeadon,  1  Rich. 
Ch.  324;  Miller  v.  Meetch,  8  Barr,  417;  Gibbs  v.  Marsh,  2  Met.  243; 
Grimke  r.  Griinke,  1  Des.  Eq.  375  n. 
1  Godolphin  v.  Godolphin,  1  Ves.  23. 

nated:  Taberc.  Willetts,37N.y.  S.     tion.     In  re  Sudeley,  [1894]  1  Ch. 
233 ;  or   after   the   fee    has   vested     334. 
absolutely,  if  such   was  the  inteu- 

373 


§  249.]  TRUSTS    IMPLIED    FROM    POWERS.  [CHAP.    VIII. 

trusts  must  be  construed  according  to  the  intention  of  tlie 
parties,  to  be  gathered  from  the  whole  instrument.  ^ 

§  249.  In  all  cases  where  parties  have  an  imperative  power 
or  discretion  given  to  them,  and  they  die  in  the  testator's 
lifetime,^  or  decline  the  trust  or  office,^  or  disagree  as  to  the 
execution  of  it,*  or  do  not  execute  it  before  their  death, ^  or  if 
from  any  other  circumstance  ^  the  exercise  of  the  power  by 
the  party  intrusted  with  it  becomes  impossible,  the  court 
will  imply  a  trust,  and  will  put  itself  in  the  place  of  the 
trustee,  and  will  exercise  the  power  by  the  most  equitable 
rule.  And  the  court  will  act  retrospectively  in  executing 
these  powers  as  quasi  trusts ;  "^  and  although  there  may  be 
great  difficulties  and  impracticabilities  in  the  way,  yet  the 
court  will  exercise  the  power  and  enforce  the  trust  :^  for,  if 
the  trust  or  power  can  by  any  possibility  be  exercised  by  the 
court,  the  non-execution  by  the  party  intrusted  shall  not 
prejudice  the  party  beneficially  interested,  or  the  cedui  que 
trust.^  Thus  a  power  to  sell  given  to  tenant  for  life  as  cestui 
que  trust  may  be  executed  after  his  death  by  trustees  under 
a  decree  of  a  court  of  equity.  ^'^ 

1  Kerr  v.  Verner,  C6  Penn.  St.  326 ;  Guion  v.  Pickett,  42  Miss.  77. 

2  Maberly  v.  Turton,  14  Ves.  499  ;  Att.  Gen.  r.  Downing,  Wilm.  7; 
Amb.  550 ;  Att.  Gen.  v.  Hickman,  2  Eq.  Cas.  Ab.  193. 

3  Izod  V.  Izod,  32  Beav.  242 ;  Doyley  v.  Att.  Gen.,  2  Eq.  Cas.  Ab.  194 ; 
Gude  V.  Worthington,  3  De  G.  &  Sm.  389. 

*  Wainwright  v.  Waterman,  1  Ves.  Jr.  311;  Moseley  t'.  Moseley,  t. 
Finch,  53. 

e  Harding  v.  Glyn,  1  Atk.  469;  Croft  v.  Adam,  12  Sim.  639;  Hewett 
V.  Hewett,  2  Eden,  332;  Flanders  v.  Clark,  1  Yes.  10;  Grieveson  v.  Kir- 
sopp,  2  Keen,  653. 

6  Att.  Gen.  v.  Stephens,  3  M.  &  K.  347. 

■^  Maberly  v.  Tmtou,  14  Ves.  499  ;  Edwards  v.  Grove,  2  De  G.,  F.  &  J. 
222. 

8  Pierson  v.  Garnet,  1  Bro.  Ch.  46. 

8  Brown  v.  Higgs,  5  Ves.  505. 

13  Faulkner  v.  Davis,  18  Grat.  651.  "Where  the  discretionary  power  is 
such  as  would  not  belong  to  the  court  by  virtue  of  its  jurisdiction  over 
the  subject-matter,  independent  of  the  will,  as,  for  instance,  a  power  of 
selecting  the  beneficiaries  of  testator's  bounty,  the  court  will  not  execute 
it,  and  under  the  rules  cannot  confer  it  upon  an  appointee.  In  such 
374 


CHAP.    VIII.J  POWERS    THAT   AUE   TRUSTS.  [§  250. 

§  250.  In  some  cases  the  donor  makes  a  direct  gift  to  one 
party,  but  subjects  the  gift  to  the  discretion  or  power  of  some 
previous  taker  or  other  party ;  as  if  a  donor  limit  a  fund 
"upon  trust  for  the  children  of  A,  as  B.  shall  appoint."  In 
such  case  the  children  of  A.  take  a  vested  interest  in  the 
su])ject  of  the  gift,  liable  to  be  divested  Ijy  the  exercise  of 
the  power  by  B.  Therefore,  on  the  failure  of  the  power,  the 
children  of  A.  become  as  absolutely  entitled  as  if  the  discre- 
tion or  })ower  had  never  been  given  to  B. ^  But  while  the 
exercise  of  the  power  is  possible,  the  donee  of  it  may  exer- 
cise his  discretion  in  favor  of  any  that  he  may  select;  he  may 
select  those  who  are  living  at  the  donor's  death,  or  those 
living  at  his  own  death. ^  In  other  cases  an  estate  is  vested 
in  a  donee  "upon  trust  to  dispose  of  it  among  the  children 
of  A."  Here  the  children  of  A.  take  nothing  directly  Ity 
way  of  the  gift,  but  their  interest  must  come  to  them  through 
the  medium  of  the  power. ^  If  the  trust  is  to  dispose  of  it 
equally  among  the  children  of  A.,  the  bequest,  though  in 
form  a  power,  is  equivalent  to  a  simple  gift.^  If  the  donee 
may  distribute  or  dispose  of  it  unequally  among  the  children 
of  A.,  and  no  distrilnition  or  disposition  is  made  by  him, 
the  court  will  execute  the  power  and  distribute  the  fund 
equally  among  the  objects  of  it.^     In  other  cases  the  property 

cases  it  is  executed  equitably  by  distributing  equally  among  the  distribu- 
tees. But  where  the  discretion  applies  to  some  ministerial  act,  as  leasing 
or  selling  lanl,  felling  timber,  and  the  like,  the  court  will  exercise  control. 
Druid  Park  Heights  Co.  v.  Oettinger,  53  Md.  63. 

^  Davy  V.  Iluoper,  2  Vern.  GG5 ;  Jones  r.  Torin,  6  Sim.  255 ;  Fenwick 
r.  Greenwell,  10  Beav.  412  ;  Hockley  v.  :Mawbey,  1  Yes.  Jr.  143, 149, 150; 
Madoc  r.  Jackson,  2  Bro.  Ch.  58S ;  Falkner  v.  Wynford,  9  Jur.  1006; 
Rhett  V.  Mason,  18  Grat.  541 ;  Carson  v.  Carson,  Phill.  (N.  C.)  Eq.  57. 

2  Lambert  v.  Thwaites,  Law  K.  2  Eq.  151;  Woodcock  r.  Keuneck, 
4  Beav.  190  ;  affirmed,  1  Phill.  72. 

8  Ward  V.  Morgan,  5  Cold.  407. 

*  llayiur  r.  Mowbray,  3  Bro.  Ch.  234 ;  Phillips  v.  Garth,  id.  64. 

6  Hands  V.  Hands,  1  T.  R.  437,  note;  Pope  v.  Whitcomb,  3  Mer.  698; 
7?e  White's  Trust,  1  Johns.  650;  Finch  r.  Hollin-sworth,  21  Beav.  112; 
Brown  r.  Pocock,  6  Sim.  257;  Grieveson  v.  Kirsopp,  2  Keen,  656;  Walch 
r.  Wallinger,  2  R.  &  M.  78;  Tam.  425  ;  1  Rev.  Stat.  X.  Y.  734,  §  100; 
Dominick  v.  Sayre,  3  Saudf .  555  ;  Hoag  v.  Keuney,  25  Barb.  396. 

375 


§  251.]  TEUSTS    IMPLIED   FROM   POWERS.  [CHAP.   VIII. 

is  vested  in  a  donee  with  a  discretion  as  to  the  objects  to 
which,  and  also  as  to  the  proportions  in  which,  it  is  to  be 
given  over.  Of  course  the  first  question  to  be  determined  in 
all  such  cases  is.  Did  the  donor  intend  to  give  a  mere  power, 
or  did  he  create  a  trust,  or  will  the  court  imply  a  trust  ? 
Lord  Cottenham  stated  the  general  rule  deduced  from  the 
cases  as  follows :  "  When  there  appears  a  general  intention 
in  favor  of  a  class,  and  a  particular  intention  in  favor  of 
individuals  of  a  class  to  be  selected  by  another  person,  and 
the  particular  intention  fails  from  that  selection  not  being 
made,  the  court  will  carry  into  effect  the  general  intention 
in  favor  of  the  class.  When  such  an  intention  appears,  the 
case  arises,  as  stated  by  Lord  Eldon  in  Brown  v.  Higgs,^  of 
the  power  being  so  given  as  to  make  it  the  duty  of  the  donee 
to  execute  it;  and,  in  such  case,  the  court  will  not  permit 
the  objects  of  the  power  to  suffer  by  the  negligence  or  con- 
duct of  the  donee,  but  fastens  upon  the  property  a  trust  for 
their  benefit. "  ^  (a) 

§  251.  Thus,  where  a  testator  gave  an  estate  "to  A.  upon 
trust  (subject  to  certain  charges),  to  employ  the  remainder 
of  the  rent  for  such  children  of  B.  as  A.  should  think  most 
deserving,  and  that  will  make  the  best  use  of  it,  or  for  the 
children  of  his  nephew,  C,  if  any  there  are,  or  shall  be," 
and  A.  died  in  the  testator's  lifetime,  it  was  held  to  be  a 
trust  in  favor  of  all  the  children  of  B.  and  C.^  So  where  a 
testator  directed  certain  property  to  remain  until  certain 
contingencies,  and  then  gave  life-estates  in  the  property  to 
two  of  his  children,  with  remainder  to  their  issue,  and  de- 
clared that  in  case  his  two  children  had  no  issue,  the  same 

1  8  Ves.  574;  18  id.  192. 

2  Burrough  v.  Philcox,  5  My.  &  Cr.  72;  Witts  v.  Boddington,  3  Bro. 
Ch.  9.5;  5  Ves.  503;  Harding  r.  Glyn,  1  Atk.  469. 

«  Brown  v.  Higgs,  4  Ves.  708;  5  Ves.  495;  8  Ves.  574;  18  Ves.  192  ; 
2  Sugd  on  Pow.  176;  Longmore  r.  Broom,  7  Ves.  124;  Jones  v.  Torin, 
6  Sim.  255 ;  Prevost  v.  Clark,  2  ]\Iadd.  4.58;  Penny  v.  Turner,  2 Phill.  473; 
Fordyce  v.  Bridges,  id.  497 ;  White  in  re,  John.  658. 

(a)  See  1  Ames   on  Trusts  (2d  ed.),  87,  n. 

376 


CHA.P.    Vlir.]  POWERS    THAT   ARE    TRUSTS.  [§  251. 

should  be  disposed  of  by  the  survivor  by  will  among  his 
iK'j)he\vs  and  nieces  or  their  children,  or  either  of  them,  or  to 
as  many  of  them  as  his  surviving  cliild  should  think  ])ropcr, 
it  was  held  to  be  a  trust  in  favor  of  the  nephews  and  nieces 
and  their  children,  subject  to  the  power  of  selection  and 
distribution  by  the  surviving  child. ^  So  where  a  testator 
gave  to  B.  in  tail,  and  if  she  had  no  issue,  she  was  to  settle 
the  estate  upon  such  person  as  she  thought  fit  by  will,  "con- 
fiding "  in  her  not  to  transfer  the  estate  from  his  nearest 
family,  it  was  held  to  be  a  trust  for  the  heir  who  was  the 
nearest  family  or  relation  within  the  meaning  of  the  will. 2 
And  where  a  testator  gave  his  property  to  his  son  in  trust  to 
a})ply  the  income  to  the  use  of  himself  and  family,  and  to 
give  by  deed  or  will  all  beyond  what  he  should  so  apply,  unto 
all  or  any  child  or  children  of  his  own  in  such  proj)ortions 
and  in  such  manner  as  he  should  see  lit,  and  his  son  died 
having  devised  the  property  to  his  wife  with  directions  to  his 
executors  to  act  under  the  will  of  his  father,  it  was  held  to 
be  a  trust  coupled  with  a  power  to  appoint  at  his  discretion 
among  his  children,  that  the  power  could  not  be  delegated, 
that  the  son's  will  was  not  an  execution  of  the  power,  and 
that  his  children  took  equally  under  their  grandfather's  will.^ 
Where  a  man  gave  his  property  "wholly"  to  his  wife  to  be 
disposed  of  by  her  and  divided  among  his  children  at  her 
discretion,  the  children  took  under  the  will  and  not  as  her 
heirs,  in  default  of  any  distribution  by  her.'*  And  where  a 
testator  gave  his  estate  to  his  wife  during  her  life,  and 
gave  all  the  remainder  to  his  two  brothers  A.  and  B.  who 
were  also  his  executors,  "with  full  confidence  that  they  will 
dispose  of  such  residue  among  our  brothers  and  sisters  and 
their  children,  as  they  shall  judge  shall  be  most  in  need  of 
the  same,  this  to  be  done  according  to  the  best  of  their  dis- 
cretion;" it  was  held  to  be  a  trust  for  the  brothers  and  sis- 
ters and  their  children,  to  the  exclusion  of  A.  and  B.  and 

1  Burrongh  i-.  Philcox,  5  My.  &  Cr.  73. 

-  Griffiths  V.  Evans,  5  Reav.  211. 
8  AVitliers  v.  Yeadon,  1  Rich.  Eq.  324. 

*  Collins  V.  Carlisle,  7  B.  Mon.  11 ;   Russell  v.  Kennedy,  3  Rrews.  438. 

377 


§  252  ]  TKUSTS   IMPLIED   FROM   POWERS.  [cHAP.    VIII. 

their  children;  and  the  court  executed  the  trust,  and  exer- 
cised the  powers.  1  Where  a  testator  gave  his  wife  certain 
property,  and  desired  her  "to  give  the  same  unto  and  among 
such  of  the  testator's  relations  as  she  should  think  most 
deserving  and  ap])rove  of,"  after  the  death  of  the  wife  with- 
out appointing,  the  court  decreed  a  trust,  and  divided  the 
property  equally  among  the  relations.^  Where  a  tenant  for 
life  "is  desired  to  give  it  among  his  children  as  he  should 
think  fit, "3  or  the  "residue  is  to  be  disposed  of  among  her 
children  as  she  shall  think  proper, "  ^  or  where  after  the  death 
of  testator's  wife  the  gift  "  is  to  such  of  his  grandchildren  as 
she  should  appoint,"^  it  was  held  to  be  a  trust  for  selection 
or  distribution,  and  in  default  of  the  exercise  of  the  power 
the  court  enforced  it  as  a  trust  and  distributed  it  equally 
among  all  the  objects  named.  ^  In  such  cases  the  word 
"children  "  will  embrace  grandchildren  if  such  appears  to  be 
the  general  intent  of  the  donor.''  {a) 

§  252.  But  where  a  testator  empowered  his  wife  to  give 
away  XIOOO  of  his  estate  at  her  death,  £100  to  A.,  XlOO  to 
B.,  and  the   rest  by  her  will,  and  he  died  without  having 

1  Bull  V.  Bull,  S  Conn.  47  ;  see  Gilbert  v.  Chapin,  19  Conn.  351 ;  Har- 
per V.  Phelps,  21  Conn.  257. 

2  Harding  v.  Glyn,  1  Atk.  469. 
8  2  Sugd.  on  Pow.  181. 

*  Kemp  V.  Kemp,  5  Ves.  849. 

6  Witts  V.  Boddington,  3  Bro.  Ch.  95. 

6  Whitehurst  v.  Ilarker,  2  Ire.  Ch.  292;  Fowler  v.  Hunter,  2  Y.  &  J. 
506;  Longmore  r.  Brown,  7  Ves.  124;  Salusbury  v.  Denton,  3  Kay  &  J. 
529  ;  Kennedy  v.  Kingston,  2  J.  &  W.  431  ;  Davy  v.  Hooper,  2  Vern.  665; 
Maddisou  v.  Andrew,  1  Ves.  57;  Hockley  v.  Mawbey,  1  Ves.  Jr.  143; 
Croft  V.  Adam,  12  Sim.  639  ;  Brown  v.  Pocock,  6  Sim.  257  ;  McNeilledge 
V.  Galbrath,  8  Serg.  &  11.  43;  Harrison  v.  Harrison,  2  Grat.  1 ;  Frazier  v. 
Frazier,  2  Leigh,  642  ;  Cruse  v.  McKee,  2  Head,  1  ;  Thompson  v.  Norris, 
2  N.  J.  Eq.  489  ;  Jecko  v.  Lansing,  45  Mo.  167. 

'  Ingraham  v.  Meade,  3  Wall.  Jr.  32. 

(rt)  Such  intention  must,  it  seems,    91  Ky.  601;  Bowker  ?;.  Bowker,  148 
be   clear,   or  this   construction    be    Mass.  198 ;    Bragg   v.    Carter,    171 
necessary  to  make  the  grant  or  de-    Mass.  324. 
vise  effective.    Ormsby  v.  Duraesnil, 
378 


CHAP.    VIII.]  POWERS   THAT    ARE    TRUSTS. 


[§  2o2. 


executed  the  power,  it  was  held  to  bo  a  mere  power,  and  no 
trust,  and  the  court  refused  to  carry  it  into  effect. *(a)  So 
where  a  testator  gave  X80,000  to  his  wife  for  life,  to  be 
distributed  at  her  decease  to  and  ani()nj:st  such  of  his  chil- 
dren and  in  such  manner  and  jtroportion  as  she  shouhl  ap- 
point, it  was  hehl  to  be  a  mere  posver  wliich  the  court  could 
not  execute  in  default  of  an  appointment  by  hcr.2(/>) 


1  Bull  r.  Vardy,  1  Vos.  Jr.  279 ;  In  re  Eddowes,  1  Dr.  &  Sra.  395. 

2  Marlborough  v.  Godolpliin,  2  Ves.  Gl ;  5  Ves.  Jr.  500.  In  tbis  case 
Lord  Ilardwicke  drew  a  distinction  between  a  gift  "  amongst  my  childreu 
as  A.  should  appoint,"  which  he  considered  a  trust,  and  a  gift  "  among 
such  of  my  children  as  A.  should  appoint,"  which  he  considered  a  mere 
power.  This  distinction,  however,  is  not  now  acted  upon.  Crossling  v. 
Crossling,  2  Cox,  39G,  is  to  the  same  effect  as  ^Marlborough  v.  Godolphin. 
These  cases  have  not  been  expressly  overruled,  but  they  have  not  been 
followed  in  the  later  cases,  and  if  they  were  to  come  before  the  courts  at 
the  present  day,  it  is  probable  that  they  would  be  held  to  be  implied 
trusts,  and  not  mere  powers,  as  courts  will,  if  possible,  construe  such  be- 


(a)  A  life  estate,  coupled  with  a 
power  of  sale,  to,  the  donor's  widow, 
if  the  income  is  insufficient  for  sup- 
port, is  a  personal  power,  which  is 
not  assignable,  or  liable  for  the  life- 
tenant's  debts.  Phillips  v.  Wood, 
16  R.  I.  27-1;  Brown  v.  Phillips,  id. 
G12;  llyan  v.  Mahan  (R.  I.),  39 
Atl.  893 ;  Welsh  v.  Woodbury,  144 
Mass.  542;  Hoxie  v.  Finney,  147 
Mass.  616;  Ladd  r.  Chase,  155 
Mass.  417  ;  Security  Co.  v.  Snow, 
70  Conn.  288.  Such  a  power  so 
added  does  not  raise  the  life-estate 
to  a  fee.  Ducker  v.  Burnham,  146 
111.  9.  It  does  enable  the  widow  to 
mortgage.  Kent  v.  Morrison,  153 
Mass.  137. 

(li)  See  Welch  v.  Ilenshaw,  170 
Mass.  409 ;  Carroll  i\  Shea,  149  ]\Iass. 
317;  Burbank  r.  Sweeney,  161  Mass. 
490;  Peirsnl  c.  Roop,  56  N.  J.  Eq. 
739;  Gulick  c.  Griswold,  43  N.  Y. 
S.  443.     Rents  and  profits  which,  as 


income,  a  widow  is  empowered  to 
use  in  whole  or  in  part,  fall  into  the 
residue,  if  not  used  by  her.  Brun- 
son  V.  Martin  (Ind.),  52  N.  E.  599. 
The  cited  case  of  Marlborough  v. 
Godolphin  appears  to  be  now  over- 
ruled. Of  it  Lord  St.  Leonards  (on 
Powers,  p.  592)  says:  "As  the 
right  to  exclude  some  does  not  pre- 
vent the  class  from  taking  in  de- 
fault of  appointment,  it  should 
seem  that  if  a  case  in  the  very 
terms  of  Duke  of  Marlborough  v. 
Godol{)hin  were  now  to  occur,  it 
would  be  decided  that  the  children 
took  as  tenants  in  common  in  de- 
fault of  appointments,  either  by 
implication,  which  seems  the  true 
construction,  or  because  the  power 
was  coupled  with  a  trust."  This  is 
approved  in  Salusbury  c.  Denton, 
supra,  in  note,  and  in  Wilson  v.  Du- 
guid,  21  Ch.  D.  244,  tiie  latter  case 
fully  reviewing  the  older  authorities. 
379 


§  253.] 


TRUSTS    IMPLIED    FROM    POWERS.  [CHAP.    VIII. 


§  253.  If  the  power  to  be  executed  is  so  uncertain  as  to  its 
objects,  that  a  court  of  equity  cannot  say  what  particular 
person  or  persons  or  class  of  persons  arc  to  take  an  interest 
under  it  as  a  trust,  it  will  be  considered  a  mere  power  which 
cannot  be  carried  into  effect;^ (a)  or  if  the  subject-matter  to 
be  affected  by  the  power  is  too  uncertain  to  be  dealt  with 
by  the  court,  a  trust  will  not  be  implied. ^  And  where  there 
is  an  express  limitation  of  the  property  over  in  case  the 
power  is  not  executed,  of  course  no  trust  can  be  implied.^ 


quests  into  gifts  to  the  parties  to  be  benefited.    Hill  on  Trust.  69 ;  2  Sugd. 
on  Powers,  181  ;  Brown  v.  Pocock,  6  Sim.  257. 

1  Stubbs  V.  Sargon,  2  Keen,  255  ;  Ommanny  v.  Butcher,  1  T.  &  R.  260; 
Wheeler  v.  Smith,  9  How.  79;  Robinson  v.  Allen,  11  Grat.  785;  Harper 
V.  Phelps,  21  Conn.  257;  Thompson  y.  McKissick,  3  Humph.  631;  Ellis  v. 
Ellis,  15  Ala.  296. 

2  Gibbs  V.  Marsh,  2  Met.  243. 

8  Pritchard  v.  Juinchant,  Amb.  126 ;  5  Ves.  596,  n.  ;  2  Sugd.  on  Pow. 
183  ;  Lines  v.  Durden,  5  Fla.  51. 


(a)  "If,  considering  all  the  cir- 
cumstances, the  intention  be  doubt- 
ful, the  doubt  will  prevent  the 
instrument  from  being  deemed  an 
execution  of  the  power."  Mason 
V.  Wheeler,  19  R.  I.  21 ;  see  Lee  v. 
Simpson,  134  U.  S.  572 ;  Patterson 
V.  Wilson,  64  Md.  193;  Funk  v. 
Eggleston,  92  111.  515;  Farlow  v. 
Farlow,  83  Md.  118;  McMillan  v. 
Deering,  139  Ind.  70.  "  If  a  person 
has  an  interest  in  one  subject,  and 
a  power  over  another,  and  uses  gen- 
eral words  of  disposition  only,  those 
words  will  not  operate  as  an  exer- 
cise of  the  power.  It  is  otherwise 
when  he  has  no  interest,  but  only  a 
power.  The  same  principle  must, 
I  think,  apply  to  a  case  where  a 
person  has  a  power  of  appointment, 
and  also  a  power  of  revocation  and 
new  appointment.  The  general 
■words  of  appointment  ought  not 
to  be  held  to  be  an  exercise  of  the 
380 


power  of  revocation.  If  there  was 
no  power  except  one  of  revocation 
and  new  appointment,  it  would  be 
different,  and  the  general  words 
would  be  then  held  to  be  an  exer- 
cise of  that  power.  I  think  it  clear 
that  an  intention  must  be  shown  to 
revoke  and  undo  what  has  been 
already  done."  Turner,  L.  J.,  in 
Pomfret  v.  Perring,  5  D.  M.  &  G. 
775,  781 ;  see  In  re  Wells'  Trusts, 
42  Ch.  D.  646,  655;  McGibbon  v. 
Abbott,  10  A.  C.  653. 

An  act  evidently  performed  in 
execution  of  a  power  need  not  ap- 
pear by  written  evidence  to  be  done 
under  the  instrument  creating  it, 
and  such  act  may  be  presumed  to 
be  in  execution  of  the  power. 
Walke  V.  Moore  (Va.),  30  S.  E. 
374  ;  Ridgely  v.  Cross,  83  Ud.  161 ; 
Cooper  V.  Haines,  70  Md.  282  ;  Xew 
England  M.  S.  Co.  v.  Buice,  98  Ga. 
795;  Dick  v.  Harby,  48  S.  C.  516; 


CHAP.    VIII.]  POWEKS    THAT   ARE    TRUSTS.  [§  254. 

§  254.  The  general  rule  is,  that  the  power  given  must  be 
strictly  executed  as  given,  or  it  will  remain  as  a  trust  for 
the  person  or  class  in  whose  favor  it  is  given;  thus,  if  the 
donee  is  to  dispose  of  the  property  to  such  persons  of  a  jiar- 
ticular  class  as  she  shall  select  in  a  last  will  and  testament, 
and  the  disposition  is  made  by  a  deed,  the  power  is  not  exe- 
cuted, and  it  will  be  construed  into  a  trust  for  the  whole 
class,  or  will  go  over,  if  there  is  a  gift  over  in  default  of  an 
appointment  or  execution  of  the  power.  ^  (a)  So  if  the  power 
is  attempted  to  be  executed  in  favor  of  a  person  or  a  class, 
outside  of  the  persons  or  classes  in  whose  favor  it  is  given, 
the  execution  will  be  bad,  and  it  will  remain  as  a  trust  for 
all  those  in  whose  favor  it  was  given. ^  As  if  the  power  is  to 
distribute  among  children,  it  cannot  be  executed  by  a  distri- 
bution among  grandchildren. ^  Where  the  power  is  to  dis- 
tribute among  a  certain  class,  something  must  be  given  to 
each  one  or  the  execution  of  the  power  is  bad.*  (5)     But  the 

1  Moore  v.  Dimond,  5  R.  I.  121 ;  Benthara  v.  Smith,  1  Cheev.  33  (2d 
part);  Haslen  v.  Kean,  2  Taylor,  279;  Christy  v.  Pulliam,  17  111.  59; 
Balteel  r.  Plumer,  L.  R.  8  Eq.  585;  Garth  i'.  Towuseiid,  L.  R.  7  Eq.  220; 
Thacker  r.  Kay,  L.  R.  8  Eq.  408. 

2  Jarnagin  v.  Conway,  2  Humph.  50 ;  Ilorwitz  v.  Norris,  49  Pa.  St. 
219;  Knight  r.  Garborough,  Gilmer,  27  ;  Little  v.  Bennett,  5  Jones,  Eq, 
156;  Lippincott  r.  Ridgway,  3  Stockt.  526;  Varrell  ;;.  Wendell,  20  X.  H. 
431;  Wickesham  r.  Savage,  58  Penn.  St.  219;  In  re  Gratwick's  Trust, 
L.  R.  1  Eq.  117  ;  Carson  v.  Carson,  Phill.  Eq.  (N.  C.)  57. 

8  Horwitz  v.  Norris,  49  Penn.  St.  219 ;  Churchill  v.  Churchill,  L.  R. 
5  Eq.  41;  jNIoriarty  v.  Martin,  3  Ir.  Ch.  26. 

*  Ibid.;  Lippincott  v.  Ridgway,  2  Stockt.  164;  3  id.  526;  Booth  r. 
Alington,  39  Eng.  L.  &  Eq.  250.  It  seems  that  this  is  not  the  rule  in 
Pennsylvania.     Graeff  v.  De  Turk,  44  Penn.  St.  527. 

Cuniston  v.  Bartlctt,  149  Mass.  243;  personalty,  for  the  appointee's  chil- 

Sweeney  v.  "Warren,  127  N.  Y.  42();  dren.     In  re  Iluddleston,  [1S94]  3 

]\IcCreary  r.  Bomberger,  151  Penn.  Ch.   595.     See  Harvard  College  r. 

St.   323;  Hill  v.   Conrad   (Texas),  Balch,  171  111.  275. 
43  S.  W.  789.    A  will  which  directs  (a)  Thra.'^her  v.  Ballard,  33  W. 

the  division  among  children  of  "  all  Va.  285;  Sires  v.  Sires,  43  S.  C.  266. 
my  property  of  every  kind,"  is  not  (6)  Under  a  direction  in  a  will 

an  execution  of  a  special  power  of  to  the  testator's  widow  to  divide  his 

appointment  by  deed  or  will  over  realty  between  his  children  "  to  the 

381 


§  255.]  TRUSTS    IMPLIED    FROM    POWERS.  [CIIAP.    VIII- 

proportion  is  left  to  the  trustee.'  And  the  donee  of  the 
power  cannot  execute  it  in  favor  of  himself  or  his  family, 
imless  the  terms  of  the  power  specially  authorize  him  so  to 
do.  2  Nor  can  he  delegate  the  power  or  the  execution  of  it  to 
others.'^  It  must  be  executed  within  the  time  named  in  the 
instrument,*  and  if  the  appointment  is  to  be  made  at  a  per- 
son's decease,  it  must  be  by  will.^  It  must  also  be  executed 
for  the  precise  purpose  declared,  and  when  the  purpose  be- 
comes wholly  unattainable  the  power  ceases.^ 

§  255.  Generally,  if  the  power  is  left  unexecuted  by  the 
donee,  the  court  will  execute  it  as  a  trust,  by  dividing  the 
fund  equally  among  the  objects  or  persons  in  favor  of  whom 
it  was  given,  or  from  whom  the  selection  might  have  been 
made,  on  the  ground  that  equality  is  equity.''  But  if  the 
donor  of  the  power  lays  down  any  rule  by  which  the  donee 
or  trustee  is  to  be  governed  in  his  selection  and  distribution 
of  the  fund,  it  is  said  the  court  will  place  itself  in  the  posi- 
tion of  the  trustee.  If  the  discretion  of  the  trustee  is  to  be 
founded  upon,  or  measured  by,  a  state  of  facts  which  the 
court  can  inquire  into  and  apply  as  effectually  as  a  private 

1  Portsmouth  v.  Shackford,  46  N.  H.  423. 

2  Bostick  V.  Winton,  1  Sneed,  524 ;  Cruse  v.  McKee,  2  Head,  1 ;  Holt 
V.  Hogan,  5  Jones,  Eq.  82;  Bull  v.  Bull,  8  Conn.  47;  Cooper  v.  Cooper, 
L.  R.  8  Eq.  312. 

8  Singleton  v.  Scott,  11  Iowa,  589;  Haslen  v.  Kean,  2  Taylor,  279; 
Withers  v.  Yeadon,  1  Rich.  Eq.  .324;  Carr  v.  Atkinson,  L.  R.  14  Eq.  400; 
Webb  V.  Sadler,  L.  R.  14  Eq.  533. 

*  Cooper  V.  Martin,  L.  R.  3  Eq.  47. 

6  Freelaud  i'.  Pearson,  L.  R.  3  Eq.  658. 

6  Hetzel  V.  Hetzel,  69  N.  Y.  1 ;  Brown  v.  Meigs,  11  Hun  (N.  Y.),  203. 

T  Doyley  v.  Attorney  General,  2  Eq.  Cas.  Ab.  195;  Longmorej;.  Broom, 
7  Ves.  124;  Salusbury  v.  Denton,  3  K.  &  J.  403;  Tzod  v.  Izod,  32  Beav. 
249 ;  Gray  i'.  Gray,  13  Ir.  Ch.  404 ;  Fordyce  v.  Brydges,  2  Phill.  497 ; 
Penny  v.  Turner,  id.  493  ;  Whithurst  v.  Harker,  2  Ir.  Ch.  492 ;  Kennedy 
?'.  Kingston,  2  J.  &  W.  431;  Frazier  r.  Frazier,  2  Leigh,  642;  Cruse  v. 
McKee,  2  Head,  1;  Davy  v.  Hooper,  2  Vern.  665. 

best  advantage,  as  she  sees  fit  and     103  Ala.  556  ;  Morffew  r.  San  Fran- 
proper,"  no  child  can   be   cut  off.     cisco,  &c.  R.  Co.,  107  Cal.  587.    See 
Faloou    r.     Flannery    (Minn.),   76    McGibbon  v.  Abbott,  10  A.  C.  653. 
N.  W.  954;  Hatchett  v.  Hatchett, 
382 


CHAP.    VII [.]       HOW    THE    COURT   WILL    EXECUTE   THEM.        [§  205. 

person  could,  it  "can  look  with  the  eyes  of  the  trustee,"  and 
can  substitute  its  own  judgment  for  that  of  the  individual. 
Lord  Ilardwicke  said  in  a  case  Ijcfore  hiui,  "Here  a  rule  is 
laid  down ;  the  trustees  are  to  judj^e  of  the  occasicjus  and 
necessities  of  tiie  family;  the  court  can  judge  of  such  neces- 
sity; that  is  a  judgment  to  he  made  from  existing  facts,  so 
that  the  court  can  make  the  judgment  as  well  as  the  trustee, 
and,  when  informed  by  evidence  of  the  necessity,  can  judge 
what  is  equitable  and  just  on  this  necessity; "  and  his  Lord- 
ship referred  the  case  to  a  master  to  report  the  facts,  and 
decreed  a  distribution  according  to  the  necessities  found.* 
This  doctrine  has  been  acted  upon  in  similar  cases.^  In 
others,  the  courts  have  said  that  it  was  "impossible  to  dis- 
tinguish between  degrees  ot  poverty,"  and  that  they  would 
not  attempt  to  apply  the  discretion  given  to  the  donee  of  the 
power,  but  would  divide  the  fund  equally. ^  This  conflict  of 
authority  leaves  the  question  Oj)cn  for  further  discussion.  It 
would  seem  that  there  is  no  imj)Ossibility  in  the  nature  of 
things  "in  distinguishing  between  degrees  of  poverty,"  or  in 
deciding  what  class  of  persons  or  relations  come  within  the 
description,  and  should  take  under  the  gift  of  che  donor. 
Lord  Hardwicke's  observations  are  just,  and  can  be  acted 
upon  by  courts.  It  is  not  so  much  a  question  whether  courts 
of  equity  can  exercise  the  discretion  given  to  the  trustee,  as 
whether  it  is  consistent  with  the  dignity  of  courts  to  inquire 
into  the  relative  necessities  of  a  testator's  relations,  or 
whether  they  have  the  time  to  enter  into  such  inquiries.  So 
far  as  the  dignity  of  courts  is  concerned,  they  may  well  re- 
member that  they  arc  created  to  administer  justice  and 
equity  to  the  jieople,  and  that  no  inquiries  or  decrees  that 
can  be  successfully  made  are  inconsistent  with  their  position 
or  duties.'* 

^  Gower  v.  Mainwaring,  2  Ves.  87.  !Mr.  Belt's  edition  has  a  misprint, 
the  court  cannot  judge. 

2  Liloy  t:  Hey,  1  Hare,  581  ;  Ilewett  v.  Ilewett,  2  Eden,  332;  Maberly 
r.  Turtoi),  11  Ves.  400;  Bull  r.  Bull,  8  Conn.  48. 

8  :McXeilledge  v.  Galbrath,  8  Scrg.  &  R.  43;  Harrison  v.  Harri.son,  2 
Grat.  1 ;  Withers  v.  Yeadon.  1  Rich.  Ch.  324. 

*  Upon  the  general  subject  of  bequests  to  poor  or  necessitous  relations, 

383 


§  256.]  TRUSTS    IMPLIED   FKOM    TOWERS.  [CHAP.    YIII. 

§  256.  If  the  donee  of  the  power  or  trustee  is  to  select  from 
the  donor's  relations  those  to  whom  he  is  to  give  the  prop- 
erty, in  the  execution  of  the  power  he  may  select  from  the 
whole  circle  of  relations,  whether  near  or  distant;^  and  he 
may  exclude  some;^  but  if  the  power  is  to  distribute  to  the 
donor's  relations,  then  the  donee  must  confine  himself  to  the 
relations  that  are  so  near  that  they  would  take  under  the 
statute  of  distributions.^  Courts  have  adopted  the  rule  of 
the  statute  of  distributions  as  a  convenient  rule  in  such  cases, 
to  prevent  such  gifts  from  being  void  for  uncertainty.  If  the 
power  devolves  upon  the  court  as  a  trust,  whether  it  is  one  of 
selection  or  distribution,  the  court  will  act  upon  the  rule  of 
the  statute  of  distributions,*  unless  the  donor  has  himself 
established  some  rule  of  selection  or  distribution  which  the 
court  can  act  upon.^  And  the  same  rule  applies  if  the  donor 
uses  the  word  "  family. "  ^  A  gift  to  nearest  relations  or  next 
of  kin  must  be  administered  in  the  same  way.'^  But  it  is  said 
that  a  power  of  selection  will  be  implied  in  the  donee  in  the 

see  Att.  Gen.  v.  Buckland,  1  Ves.  231;  Amb.  71;  Anon.  1  P.  Wms.  327; 
Widmore  v.  Woodroffe,  Amb.  636;  Brunsden  v.  Woolredge,  id.  507; 
Mahon  v.  Savage,  1  Sch.  &  Lef.  Ill ;  Green  v.  Howard,  1  Bro.  Ch.  38. 

1  Grant  v.  Lynham,  4  Russ.  292;  Brown  u.  Higgs,  5  Ves.  501;  Cruwys 
V.  Colman,  9  Ves.  324 ;  Swift  v.  Gregson,  1  T.  R.  435,  note  f  ;  Salusbury 
V.  Denton,  3  K.  &  J.  536 ;  Supple  v.  Lowson,  Amb.  729 ;  Harding  v.  Glyn, 

1  Atk.  469;  Mahon  v.  Savage,  1  Sch.  &  Lef.  Ill;  Huling  v.  Farrer,  9 
R.  I.  410  ;  Brunsden  v.  Woolredge,  Amb.  507,  seems  inconsistent  with 
the  other  authorities. 

2  Ingraham  v.  Meade,  3  Wall.  Jr.  32. 

8  Clapton  V.  Bulmer,  10  Sim.  426;  5  My.  &  Cr.  108;  Att.  Gen.  v. 
Price,  17  Ves.  373,  note  a;  Isaac  v.  Defriez,   Amb.  595;  Carr  v.  Bedford, 

2  Ch.  R.  146;  Pope  v.  Whitcombe,  3  Mer.  437  ;  In  re  Jeaffreson's  Trusts, 
L.  R.  2  Eq.  276 ;  Forbes  v.  Ball,  3  Mer.  437.  This  case  seems  inconsis- 
tent, but  the  question  was  whether  it  was  a  power  or  a  trust,  and  not 
■whether  the  authority  was  exceeded. 

*  Bennett  v.  Honywood,  Amb.  708;  Hutchinson  v.  Hutchinson,  13  Ir. 
Eq.  332  ;  Gough  v.  Bult,  16  Sim.  45 ;  Cowper  v.  Mantell,  22  Beav.  231. 

^  Ibid. ;  or  unless  the  gift  is  in  some  sense  a  charity.  White  v.  White, 
7  Ves.  423  ;  Mahon  v.  Savage,  1  Sch.  &  Lef.  Ill;  Att.  Gen.  v.  Price,  17 
Ves.  371;  Isaac  v.  Defriez,  id.  373,  note  a. 

^  Cruwys  v.  Colman,  9  A^'es.  319;  Grant  v.  Lynham,  4  Russ.  297. 

^  Edge  V.  Salisbury,  Amb.  70 ;  Goodiuge  v.  Goodinge,  1  Ves.  231. 
384 


CIIAl'.    VIII.]       now   THK   COURT    WILL    EXKCUTE   TIIH.M.        [§  257. 

case  of  rol.ations,  whore  it  would  not  have  hcon  implied  in 
the  case  of  children. ^  (a)  A  power  to  an  unmarried  woman 
to  appoint  to  hfr  family  or  n(;xt  of  kin  may  extend  to  any 
relative, 2  and  such  power  may  be  executed  after  coverture. ^ 

§  257.  Intimately  connected  with  this  subject  is  the  in- 
quiry whether  courts  will  execute  the  ])ower  of  distribution 
among  the  ])crsons  intended,  by  distributing  prr  capita  or  jjer 
Stirpes.  Upon  this  matter  it  is  to  bo  observed  that  courts 
have  adopted  the  statute  of  distriljutions  as  a  convenient  rule 
to  point  out  the  relations  intended  by  a  donor,  when  ho  uses 
that  word  in  a  gift.  The  only  reason  for  adopting  the  rule 
was  to  prevent  the  gift  from  failing  for  uncertainty.  The 
rule  is  used  to  point  out  the  persons  intended  to  take,  but  the 
terras  of  the  gift  are  used  to  point  out  the  proportions.  If, 
therefore,  there  is  no  rule  in  the  gift  which  can  apply  to  de- 
termine the  proportions,  the  court  will  make  the  distribution 
per  capita,  and  everybody  within  the  rule  will  take  equally  as 
tenants  in  common.*  But  if  the  gift  is  to  the  next  of  kin  of 
tnc  donor,  it  will  be  confined  to  the  nearest  relations ;  and 
those  who  w'ould  take  by  representation  under  the  statute  of 
distributions  will  be  excluded  if  there  are  relations  a  degree 
nearer.^ (?>)  If  the  gift  is  to  "my  surviving  nephews  and 
nieces  "  after  paying  certain  legacies  and  the  termination  of 

1  Spring  r.  Biles,  1  T.  R.  435,  note  f ;  Mahon  v.  Savage,  1  Sch.  &  Lef . 
Ill;  Salusbury  c.  Denton,  3  K.  &  J.  53G;  Pope  v.  Whitcombe,  3  Mer. 
689. 

2  Snow  V.  Teed,  L.  R.  9  Eq.  622. 

8  Wood  V.  Wood,  L.  R.  10  Eq.  220. 

4  Walker  v.  Maunde,  19  Ves.  427  ;  Thomas  v.  Hole,  Cas.  t.  Talb.  251 ; 
Phillips  V.  Garth,  3  Bro.  Ch.  64;  Stamp  v.  Cooke,  1  Cox,  32G;  Hinckley 
V.  Maclaerns,  1  Myl.  &  K.  27;  Withy  v.  Mangles,  4  Beav.  358;  10  01.  & 
Fin.  215;  Green  v.  Howard,  1  Bro.  Ch.  33;  Pope  v.  Whitcombe,  3  Mer. 
689;  Rayner  v.  JNlowbray,  3  Bro.  Ch.  234  ;  De  Laurencel  v.  De  Boom,  67 
Cal.  362. 

6  Elmsley  v.  Young,  2  Myl.  &  K.  780 ;  Withy  v.  Mangles,  4  Beav.  358 ; 
10  CI.  &  Fin.  215. 

(a)  See  Jn  re  Veale's  Trusts,  4  (J))  See   Harris   v.    Newton,  46 

Ch.  D.  61,  67;  Wilson  i;.  Duguid,     L.  J.  Ch.  268. 
24  Ch.  D.  244,  251. 

VOL.  I.  —  25  385 


§  258.]  TRUSTS   IMPLIED   FROM    POWERS.  [CIIAP.    VIII. 

certain  life  estates,  the  representatives  of  a  nephew  who  sur- 
vived the  testator,  but  died  before  the  time  for  distribution, 
have  no  share. ^  If  the  fund  is  left  for  the  "maintenance 
and  education "  of  two  children  named,  each  will  share 
equally  without  regard  to  their  differing  nceds.^  If  the 
subject-matter  of  the  gift  is  incapable  of  division,  and  is  to 
be  bestowed  u\)on  some  one  of  a  class  to  be  selected  by  the 
donee,  and  no  selection  is  made,  the  court  will  notwithstand- 
ing execute  the  power  as  a  trust,  if  by  any  possibility  it  can 
be  done.^ 

§  258.  Another  difficult  question  which  courts  must  decide 
when  they  are  called  upon  to  execute  these  powers  or  trusts, 
is,  whether  the  fund  shall  be  distributed  to  the  parties  in 
interest  living  at  the  donor's  death,  or  to  those  living  at  the 
donee's  death.  Upon  this  matter  it  has  been  determined 
that  when  it  appears  that  the  donee  is  to  have  his  whole  life 
to  make  the  selection  or  distribution,  or  if  the  donee  is  to 
have  the  use  of  the  fund  for  his  life,  then  the  court  will  dis- 
tribute it  to  the  parties  entitled  living  at  the  death  of  the 
donee.*  But  if  the  donee  is  to  make  the  distribution  imme- 
diately^ or  as  soon  as  may  be,  the  court,  on  his  death,  with- 
out executing  the  power,  will  distribute  the  fund  among  those 
entitled  at  the  death  of  the  donor  ;^  and  the  same  rule  will 
be  followed  if  the  donee  die  before  the  donor.^     These  rules, 

1  Denny  v.  Kettel,  135  Mass.  138. 

2  Jones  V.  Foote,  137  Mass.  543. 

8  Moseley  v.  Moseley,  R.  t.  Finch,  53;  Clarke  xk  Turner,  Freem.  199  ; 
Richardson  v.  Chapman,  7  Bro.  P.  C.  318;  Brown  v.  Higgs,  5  Yes.  504. 

■*  Cruwys  v.  Colman,  9  Yes.  319;  Brown  v.  Pocock,  6  Sim.  257;  Bon- 
ser  V.  Kinnear,  2  Gif.  195;  Birch  v.  Wade,  3  Yes.  &  B.  198;  Walsh  v. 
Wallinger,  2  R.  &  M.  78  ;  Burrough  v.  Philcox,  5  My.  &  Cr.  72;  Wood- 
cock V.  Renneck,  4  Beav.  190  ;  1  Phill.  72 ;  Finch  v.  Hollingsworth,  21 
Beav.  112;  Doyley  v.  Att.  Gen.,  2  Eq.  Cas.  Ab.  194,  pi.  15;  Witts  v. 
Boddington,  3  Bro.  Ch.  95;  Winn  v.  Fenwick,  11  Beav.  438;  Tiffin  v. 
Longman,  15  Beav.  275;  Grieveson  v.  Kirsopp,  2  Keen,  653;  Freeland 
V.  Pearson,  L.  R.  3  Eq.  658. 

^  Brown  v.  Higgs,  4  Yes.  708;  Longmore  i\  Broom,  7  Yes.  124;  Cole 
V.  Wade,  16  Yes.  27. 

6  Penny  v.  Turner,  2  Phill.  493 ;  Hutchinson  v.  Hutchinson,  13  Ir.  Eq.  332. 
386 


CHAP.    VIII.]       HOW   THE    COUKT    WILL    EXECUTE    THEM.       [§  258. 

however,  are  iij)plical)lc  only  when  the  final  beneficiaries  take 
through  the  medium  of  tlie  power;  for  if  they  take  directly  by 
the  form  of  the  gift  subject  to  be  defeated  by  the  execution 
of  the  power,  they  have  a  vested  interest  at  the  Icatli  of  the 
donor,  and  of  course  those  living  at  that  time  will  take,  if 
the  power  is  not  executed  to  defeat  them.^  Where  the  donee 
may  execute  the  power  by  deed  or  will  at  any  time  during  his 
life,  and  ho  dies  leaving  tho  power  unexecuted,  there  is  a 
conllict  of  the  authorities  upon  the  question  to  whom  should 
the  court  give  the  funds:  Mr.  Lcwin  says  that  there  is  an 
equal  conflict  of  principle.  2 

1  Lambert  v.  Thwaites,  L.  R.  2  Eq.  151. 

a  Doyley  r.  Att.  Gen.,  2  Eq.  Cas.  Ab.  195;  Harding  v.  Gljn,  1  Atk. 
469;  Pope  v.  Whitcombe,  3  ISIer.  089,  are  authorities  that  those  living  at 
the  death  of  the  donee  should  take.  On  the  other  hand,  the  cases  of 
Hands  v.  Hands,  1  T.  R.  437,  note  ;  Grieveson  v.  Kirsopp,  2  Keen,  653, 
are  authorities  that  those  living  at  the  death  of  the  donor  should  take. 
Mr.  Lewin  says,  p.  600  (5th  ed.  Lond.)  :  "  Upon  principle,  too,  as  well  as 
ui)on  authority,  this  question  is  attended  with  difficulty.  On  the  one 
hand,  the  power  may  be  properly  exercised  by  the  donee  at  any  time  be- 
fore his  death,  and  there  is  no  obligation  to  exercise  it  earlier,  and  if  any 
niembei's  of  the  class  die  before  the  power  is  exercised,  they,  according  to 
the  ordinary  rule,  cease  to  be  objects  of  it.  The  donee  of  the  power  lias 
an  undoubted  right  to  postpone  the  execution  of  it  until  the  last  moment 
of  his  life,  and  the  only  default  which  the  court  has  to  supply,  is  the  non- 
exercise  yu5<  before  his  death  ;  and  that  default  must,  therefore,  be  supplied 
in  favor  of  those  who  were  objects  at  the  date  of  the  death  of  the  donee. 
On  the  other  hand,  the  donee  of  the  power  may  exercise  it  in  favor  of 
the  class  existing  at  the  time  of  exercise,  to  the  exclusion  of  those  who 
have  died  before,  and  also,  where  the  power  is  one  of  selection,  to  the  ex- 
clusion of  those  who  may  come  into  esse  subsequently,  but  the  court  can- 
not act  arbitrarily,  and  cannot  show  any  favor,  but  must  observe  equality 
towards  all.  Who,  then,  are  the  objects  of  the  power  ?  As  it  was  not 
the  duty  of  the  donee  of  the  power  to  exercise  it  at  one  time  more  than 
another,  the  only  objects  of  the  power  must  be  all  those  who  might  by 
possibility  have  taken  a  benefit  under  it ;  that  is,  those  living  at  the  death 
of  the  testator,  and  those  who  come  into  being  during  the  continuance  of 
the  life-estate ;  otherwise,  should  all  the  class  predecease  the  tenant  for 
life  (an  event  not  improbable  where  children  or  some  limited  class  of  rela- 
tions are  the  objects),  there  would  be  a  power  imperative  which  is  con- 
strued a  trust,  and  no  cestxii  que  trust,  —  a  result  which,  it  is  conceived, 
the  court  would  be  somewhat  unwilling  to  adopt. 

387 


ACCEPTANCE   OF   THE   TKUST.  [CHAP.   IX. 


CHAPTER  IX. 

APPOINTMENT,  ACCEPTANCE,  DISCLAIMER,  REMOVAL,  RESIGNA- 
TION, SUBSTITUTION,  AND  NUMBER  OF  TRUSTEES,  AND  APPOINT- 
MENT  UNDER   A   POWER. 

§  259.     Acceptance  of  the  trust  —  how  and  when  it  should  be  accepted 

§  260.  What  is  an  acceptance,  and  its  effect. 

§  261.  How  an  acceptance  may  be  shown. 

§  261  a.  Trustee's  bond. 
§§  262,  263.  Where  an  executor  is  also  named  as  trustee. 

§  264.     Of  the  executor  of  an  executor,  or  the  executor  of  a  trustee 

§  26.5.     Trustee  de  son  tort. 

§  266.     No  such  thing  as  a  passive  trustee. 

§  267.     Disclaimer  by  trustee. 

§  268.  Cannot  disclaim  after  acceptance. 

§  269.  Whether  an  heir  can  disclaim  after  the  death  of  the  trustee. 

§§  270,  271.     Parol  disclaimer  sufficient,  but  a  writing  more  certain. 

§  272.  Where  a  legacy  or  other  benefit  is  given  to  the  trustee  or  executor. 

§  273.  Effect  of  a  disclaimer. 

Removal  or  resignation. 

§  274.  How  a  trustee  may  be  removed  or  resign. 

§  275.  For  what  causes  may  be  removed. 

§  276.  For  what  causes  may  be  allowed  to  resign. 

§  276  a.        A  trust  shall  not  fail  for  lack  of  a  trustee.     See  §  731. 
§§  277,  278.     How  the  court  proceeds  in  substituting  trustees. 

§  279.  Bankruptcy  of  trustee. 

§  280.  The  resignation  of  trustees. 

§  281.  Where  the  same  person  is  executor  and  trustee. 

§  282.  The  proceedings  to  remove  and  substitute  trustees. 

§  283.  Where  all  parties  consent. 

§  284.  Of  the  vesting  of  the  property  in  the  new  trustees. 

§  285.  Duty  of  trustee  where  all  consent  to  his  discharge. 

§  286.     Of  the  number  of  trustees. 

Appointment  of  trustees  under  a  power. 

§  287.  Trustees  cannot  appoint  their  successors  or  new  trustees  unless 

power  is  given  in  the  instrument  of  trust. 

§  288.  Caution  necessary  in  new  appointments. 

§  289.  Powers  of  appointment  frequently  matters  of  personal  confidence. 

§  290.  Occasions  or  events  upon  which  new  appointments  may  be  made. 

§  291.  An  appointment  may  be  made  to  fill  a  vacancy  occurring  before  the 

death  of  the  testator. 

§  292.  Unfitness  and  incapacity. 

§  293.  Power  cannot  be  exercised  if  the  trust  is  already  in  suit  in  court. 

388 


CHAP.  IX.]       ACCEPTANCE  OF  THE  TRUST.  [§  259. 

§  294.  By  whom  the  power  may  bo  exercised. 

§  2'J5.  The  jjower  must  \>c  strictly  followed. 

§  2'J6.  Who  may  bo  a|jj)oiiiteil  to  e-vercise  tho  power. 

§  297.  Who  may  be  appoiuted  uuder  a  power. 

§  259.  When  a  trust  is  created  by  implication,  result,  or 
construction  of  law  from  acts  of  parties,  they  will  be  held  by 
the  law  to  the  j)erfurniance  of  the  trust  whether  they  are 
willing  or  unwilling  to  accept  the  situation;  that  is,  when  a 
trust  is  raised  by  law  and  thrust  upon  the  conscience  of  a 
party,  as  the  result  or  construction  to  l;c  put  upon  his  acts, 
in  order  to  do  complete  justice,  the  acceptance  or  refusal  of 
the  party  to  be  charged  with  the  trust  cannot  alter  his  legal 
or  equitable  liability  to  act  as  a  trustee,  and  to  do  all  that 
is  required  of  him  to  execute  the  trust.  Subject  to  this 
qualification,  no  one  is  compellable  to  undertake  a  trust.  ^  If 
a  conveyance  is  made  l)y  a  i)rivate  individual  or  corporation 
to  public  officers  and  their  successors  in  oflice,  the  successors 
are  not  bound,  unless  they  accept  the  trust. ^  In  voluntary 
or  express  trusts,  no  title  vests  in  the  proposed  trustee,  hy 
whatever  instrument  it  is  attempted  to  be  transferred,  unless 
he  expressly  or  by  implication  accepts  the  office,  or  in  some 
way  assumes  its  duties  and  liabilities.^  And  though  a  person 
may  have  promised  or  agreed  beforehand  to  accept  a  trust, 
and  his  name  is  introduced  into  the  will,  conveyance,  or  set- 
tlement, yet  he  may  decline  to  act,  and  it  is  proper  for  him 
to  do  so  if  he  finds  that  his  duties  arc  different  from  what  he 
conceived  them  to  be  when  he  entered  into  the  agreement; 
or  if  for  any  reason  he  cannot  attend  to  the  proper  discharge 

1  Lowry  v.  Fulton,  9  Sim.  123;  Robinson  v.  Pitt,  3  P.  Wms.  251; 
Moyle  V.  Moyle,  2  Russ.  &  M.  715.  And  he  may  renounce  the  trust, 
though  such  renunciation  may  deprive  a  beneficiary  of  all  means  of 
obtaining  a  benefit  intended  for  him  by  a  testator.  Beekman  v.  Bonsor, 
23  N.  Y.  298  ;  Kennedy  r.  Winn,  80  Ala.  IGG. 

-  Delaplane  v.  Lewis,  19  Wis.  476. 

'  Maccubbin  v.  Cromwell,  7  (iill  &  J.  157  ;  Bethune  v.  Dougherty,  21 
Ga.  257;  King  r.  Donnelly,  5  Paige,  40  ;  Trask  v.  Donaghue.  1  Aik.  370 ; 
Burritt  v.  Silliman,  13  N.  Y.  93  ;  De  Peyster  r.  Clendining,  8  Paige,  295; 
Bulkley  v.  De  Peyster,  26  Wend.  21  ;  Judson  v.  Gibbons,  5  Wend.  224  ; 
Cooper  V.  IVIcClun,  10  111.  435  ;  Matter  of  Robiusou,  37  X.  Y.  201 ;  Arm- 
strong V.  Morrill,  14  Wall.  138. 

389 


§  260.]  ACCEPTANCE    OF   THE    TRUST.  [CHAP.    IX. 

of  the  office.^  Such  refusal  docs  not  invalidate  the  deed  or 
will :  it  only  relieves  the  trustees,  and  enables  the  court  to 
appoint  others.  2  The  refusal  to  act  should  be  affirmatively 
shown,  either  by  an  express  disclaimer,  or  by  such  a  tacit 
refusal  to  act  as  amounts  to  an  express  rejection  ;2  for  every 
o-if t  by  will  or  deed  is  supposed,  'prima  facie,  to  be  beneficial 
to  the  donee,  and  therefore  the  law  will  presume  that  every 
gift,  whether  in  trust  or  not,  is  accepted  until  the  contrary 
is  proved.*  Especially  will  this  presumption  prevail  after  a 
long  lapse  of  time,  as  twenty  years,^  or  thirty-four  years,^  if 
the  trustee  has  notice,  and  has  not  disclaimed,  though  he 
may  have  done  nothing  in  the  execution  of  the  trust.  And 
even  where  a  deed  was  only  four  years  old,  and  the  trustees 
knew  of  their  appointment,  and  did  not  object,  Lord  St. 
Leonards  held  that  they  could  not  be  allowed  to  say  that 
they  did  not  assent  to  the  conveyance.'' 

§  2G0.  If  the  trust  is  created  by  deed,  the  most  obvious, 
natural,  and  effectual  mode  of  signifying  an  acceptance  is  by 
signing  the  deed;^  but  such  execution  of  the  deed  by  the 
trustee  is  not  necessary.^     Where  trusts  are  by  will  vested 

1  Doyle  V.  Blake,  2  Sch.  &  Lef.  239 ;  Evans  v.  John,  4  Beav.  35 ;  Smith 
V.  Knowles,  2  Grant  Cas.  413 ;  Crook  v.  Ingoldsby,  2  Ir.  Eq.  375. 

2  Brownell  v.  Downs,  11  How.  62;  Nicoll  v.  Miller,  37  111.  387;  Nicoll 
V.  Ogden,  29  111.  323 ;  Elstner  v.  Fife,  32  Ohio  St.  358  ;  Thatcher  v.  St. 
Andrews  Church,  37  Mich.  264  ;  Johnson  v.  Roland,  58  Tenn.  203.  De- 
clining to  act  as  executor  is  not  a  renunciation  of  the  trust  over  a  fund 
bequeathed  in  the  will.  Garner  v.  Dowling,  11  Heisk.  (Tenn.)  48;  "Wil- 
liams V.  Gushing,  34  Maine,  370  ;  Taintor  v.  Clark,  13  Met.  224. 

8  Read  v.  Robinson,  6  Watts  &  S.  331. 

*  Ibid. ;  Townson  v.  Tickell,  3  B.  &  Aid.  30 ;  Thompson  v.  Leach, 
Ventr.  198 ;  Wilt  v.  Franklin,  1  Binn.  502  ;  Wise  v.  Wise,  2  Jon.  &  La. 
412;  Eyrick  v.  Hetrick,  13  Penn.  St.  494;  4  Kent,  500;  4  Cru.  Dig.  404- 
406;  Goss  v.  Singleton,  2  Head,  67;  Penny  v.  Davis,  3  B.  Mon.  313; 
Furmau  v.  Fisher,  4  Cold.  626. 

6  In  re  Uniacke,  1  Jon.  &  La.  1 ;  Eyrick  v.  Hetrick,  13  Penn.  St.  493. 

*  In  re  Needham,  1  Jon.  &  La.  34. 

'  Wise  V.  Wise,  2  Jon.  &  La.  403-412 ;  Penny  v.  Davis,  3  B.  Mon.  314; 
Lewis  V.  Baird,  3  McLean,  65  ;  Read  v.  Robinson,  6  Watts  &  S.  338. 

8  Patterson  v.  Johnson,  113  111.  559,  a  good  case  on  acceptance. 

9  Flint  V.  Clinton  Co.,  12  N.  H.  432;   Cook  o.  Fryer,  1  Hare,  498; 

390 


CHAP.   IX.]  ACCEPTANCE   OF   THE   TRUST.  [§  2G0. 

in  the  executors  as  such,  accepting  and  qualifying  as  exec- 
utor accepts  the  trusts.^  Acceptance  may  be  presumed  by 
acts  of  the  trustee  at  or  subsequi-nt  to  the  graut.'''(a)  If  the 
trustee  acts  under  the  deed  in  tlie  performance  of  the  trust, 
he  will  bo  held  to  have  accepted,  though  lie  has  not  exe- 
cuted, the  deed,  and  ho  may  be  liable  for  a  breach  of  the 
trust ;'  but  if  the  deed  contains  special  covenants,  the  trustee 
cannot  be  sued  upon  them,  if  he  has  not  executed  it,  though 
he  may  have  accepted  the  deed.^  Nor  will  the  execution  of 
the  deed  amount  to  a  covenant  to  execute  the  trust,  if  it  does 
not  contain  words  that  can  be  construed  into  such  a  covenant 
at  law.^     But  the  word  "  covenant "  or  "  agree  "  is  not  neces- 

Montfort  r.  Cadogan,  17  Ves.  488;  19  Ves.  0o8  ;  Small  v.  Ayleswood, 
9  B.  &  Cr.  300 ;  Leffler  v.  Armstrong,  4  Iowa,  482 ;  Buckridge  v.  Glas.se, 
1  Cr.  &  Ph.  131 ;  Bixler  r.  Taylor,  3  B.  Mou.  3G2 ;  Field  r.  Arrowsmith, 
3  Humph.  442  ;  Smith  v.  Kuowles,  2  Grant,  Ca.  413 ;  lloberts  r.  Moseley, 
51  Mo.  284. 

1  Earle  v.  Earle,  93  X.  Y.  104. 

2  Harvey  r.  Gardner,  41  Ohio  St.  642. 

8  Kedenour  v.  Wherritt,  30  Ind.  48.3.     See  also  cases  in  note  9,  p.  346. 
*  Richardson  v.  Jenkins,  1  Drew.  477 ;  Vincent  v.  Godson,  1  Sm.  &  Gif. 
384. 

6  Wyuch  V.  Grant,  2  Drew.  312  ;  Courtney  v.  Taylor,  6  M.  &  Gr.  851 ; 

(a)  Apart  from  statute,  the  pro-  Trusts  (10th  ed.),  214;  McBride  v. 
posed  trustee  need  not  sign  or  ex-  McTntyre,  91  ^lich.  406.  "When  a 
pressly  assent  to  the  trust  deed,  resulting  trust  arises  from  a  pay- 
Smith  V.  Davis,  90  Cal.  25 ;  Garn-  ment  towards  the  purchase-money, 
sey  V.  Gothard,  id.  603  ;  Roberts  v.  the  trustee's  covenants  in  a  decla- 
Moseley,  51  Mo.  282  ;  Daly  v.  Bern-  ration  of  trust  made  by  him  showing 
stein,  6  N.  Mex.  380  ;  Holland  v.  such  payment,  are  his  covenants 
Alcock,  108  N.  Y.  312  ;  "Wadd  v.  only,  and  do  not,  under  the  statute 
Hazleton,  62  Hun,  G02;  Ewing  v.  of  frauds,  operate  to  limit  or  affect 
Buckner,  76  Iowa,  467 ;  1  Ames  on  the  beneficiaries'  estates,  without 
Trusts  (2d  ed.),  229  ;  supra,  §  103,  their  signatures.  Adams  i:  Carey, 
n.  (a).  If  he  knows  of  his  appoint-  53  N.  J.  Eq.  331.  The  grantee  in  a 
ment,  and  does  not  disclaim,  he  is  deed  of  trust,  who  accepts  and  takes 
estopped  to  deny  the  effect  of  his  possession,  is  estopi^Hl  to  deny  the 
receipt  of  the  trust  proi)erty,  or  ha  grantor's  title.  Guilfoil  r.  Arthur, 
will,  after  the  lapse  of  time,  be  pre-  158  111.  600.  As  to  what  is  a  trust 
sumed  to  have  accepted  the  trust,  deed,  see  O'Rourke  r.  Beard,  151 
especially  with  respect  to  the  effect  Mass.  9  ;  Dulaney  r.  Willis,  95  Va. 
upon  third  persons.     See  Lewin  on  606  ;  More  r.  Calkins,  95  Cal.  435. 

391 


§  260.]  ACCEPTANCE    OF   THE    TRUST.  [ciIAP.    IX. 

sary  for  that  purpose;  the  word  "declare"  will  suffice.^  If 
there  is  a  hreach  of  the  trust,  but  no  execution  of  the  deed 
other  than  by  an  acceptance  of  it,  a  simple  contract  debt  only 
is  created  against  the  trustee  or  his  estate,^  but  a  breach  of 
covenants  under  the  hand  and  seal  of  the  trustee  creates  a 
specialty  debt,  which  in  some  jurisdictions  takes  precedence 
of  simple  contract  debts. ^  This  distinction  is  of  no  effect  in 
the  United  States,  as,  in  every  State,  probably  the  real  estate 
of  a  deceased  person  is  equally  liable  for  his  debts,  however 
contracted  or  evidenced.  If  the  trustee  executes  the  deed,  he 
should  see  to  it  that  the  recitals  are  all  correct,  otherwise  he 
may  be  held  liable  to  make  them  good.^  Acceptance  of  the 
trust  estops  the  trustee  from  denying  the  title  of  the  person 
for  whom  he  holds.  ^  (a) 

Newport  v.  Bryan,  5  Ir.  Ch.  119  ;  Adey  v.  Arnold,  2  De  G.,  M.  &  G.  433; 
Marryatt  v.  Marryatt,  6  Jur.  (x.  s.)  572 ;  Holland  v.  Holland,  L.  R.  4  Ch. 
449. 

^  Richardson  v.  Jenkins,  1  Drew.  477  ;  Saltoun  v.  Hanston,  1  Bing. 
N.  C.  433  ;  Cummins  v.  Cummins,  3  Jon.,&  La.  64  ;  8  Ir.  Ch.  723  ;  Jen- 
kins V.  Robertson,  Law  R.  1  Eq.  123. 

2  Jenkins  v.  Robertson,  1  Eq.  R.  123;  Lockhart  v.  Reilly,  1  De  G.  & 
J.  464;  Vernon  v.  Vawdry,  2  Atk.  119;  Barn.  280;  Cox  v.  Bateman, 
2  Ves.  19 ;  Kearnau  v.  Fitzsimon,  3  Ridg.  P.  C.  18.  If  the  trustee  ex- 
ecute the  deed,  and  it  is  a  simple  acceptance  of  the  trust  on  his  part,  the 
breach  of  the  trust  is  a  simple  contract  debt,  for  there  is  no  breach  of  any 
express  covenant.     Holland  v.  Holland,  L.  R.  4  Ch.  449. 

s  GifEord  v.  Manley,  For.  109  ;  ]\Iavor  v.  Davenport,  2  Sim.  227;  Benson 
V.  Benson,  1  P.  Wms.  131 ;  Deg  v.  Deg,  2  P.  Wms.  414;  Turner  v.  War- 
die,  7  Sim.  80;  Bailey  v.  Ekins,  2  Dick.  632;  Cummins  v.  Cummins,  3 
Jon.  &  La.  64  ;  Primrose  v.  Bromley,  1  Atk.  89  ;  Wood  v.  Hardisty,  2  Coll. 
542,  commented  upon  in  L.  R.  1  Eq.  125. 

^  Gore  V.  Bowser,  3  Sm.  &  Gif.  6;  Chaigneau  v.  Bryan,  1  Ir.  Ch.  172; 
8  Ir.  Ch.  251 ;  Story  v.  Gape,  2  Jur.  (n.  s.)  706  ;  Bliss  r.  Bridgewater 
(cited  Lewin  on  Trusts,  166,  5th  ed.).  But  in  Fenwick  v.  Greenwell,  10 
Beav.  418,  the  Master  of  the  Rolls  refused  to  allow  the  recital  of  a  repre- 
sentation to  bind  the  trustees. 

s  Smith  V.  Sutton,  Adm'r,  74  Ga.  528. 

(a)  A  trustee,  who  is  in  default,  been  made  good;  this  applies  also 

cannot  claim,  as  against  his  cestui  to  his  assignee,   even  though  the 

que  trust,  any  beneficial  interest  in  default  was  subsequent  to  the  as- 

the  trust  estate  until  bis  default  has  signment ;  and  the  rule  applies  not 

392 


CHAP.  IX.]        ACCEI'TANCK  OF  THE  TRUST.  [§  261. 

§  2(51.  Parol  evidence  of  the  conversations,  acts,  and  ad- 
missions of  a  party  are  admissildo  to  j)rove  his  acceptance  of 
a  trust.'  Thus,  if  a  person,  with  notice  of  his  appointment 
to  a  trust,  receives  the  income  of  the  trust  estate;"'^  or  exe- 
cutes a  power  of  attorne}';^  or  signs  a  joint  draft,  order,  or 
receipt,  to  enable  some  other  person  to  act  in  administering 
the  estate  or  the  trust;*  or  signs  a  receipt  as  trustee;^  or 
gives  notice  to  a  tenant  of  the  estate  to  pay  rent  to  liim;'* 
or  brings  an  action  on  the  footing  of  the  trust;"  or  inter- 
feres generally  by  ordering  the  trust  property  to  be  sold,  or 
by  being  i)resent  at  the  sale,  or  by  giving  any  directions  im- 
plying ownership,  or  by  frequently  making  inquiries  of  the 
acting  trustee  as  to  the  affairs  of  the  trust, ^  or  by  not  object- 
ing when  the  instrument  of  trust  is  read  to  him,^  —  all  these 
acts  may  be  shown  by  parol,  as  evidence  tending  to  prove  an 
acceptance,  and  the  evidence  will  be  more  or  less  conclusive 
according  to  the  circumstances  of  each  case.  The  general 
rule  is,  that  every  voluntary  interference  with  the  trust  prop- 
erty will  stamp  a  person  as  an  acting  trustee,  '^^  unless  such 

1  Urch  V.  Walker,  3  My.  &  Cr.  7u;i  ;  James  r.  Frearson,  1  N".  C.  C.  375; 
1  Y.  &  C.  Ch.  370;  Doe  r.  llanis,  IG  M.  &  W.  517;  Rodeuour  r.  Wher- 
ritt,  30  lud.  485. 

-  Couyiigham  v.  Conyngham,  1  Ves.  522. 

8  Hanison  v.  Graham,  1  P.  Wins.  211,  n. ;  1  Wms.  Ex'rs,  151  ;  Ilan- 
bury  V.  Kirkland,  3  Sim.  2G5;  Christian  v.  Yancey,  2  P.  &  11.  (Va.)  240. 

*  Broadhurst  v.  Balguy,  1  Y.  &  C.  Ch.  IG  ;  Sadler  r.  Ilobbs,  2  Bro.  Ch. 
114  ;  Doyle  v.  Blake,  2  Sch.  &  Lef.  231. 

6  Kennedy  v.  Winn,  80  Ala.  1G6. 

^  Montfort  v.  CadoL,'an,  17  Ve3.  4S7. 

'  Ibid.;  O'Neill  v.  Henderson,  15  Ark.  235;  Pond  v.  Iline,  21  Conn. 
519 ;  Penny  v.  Davis,  3  B.  IMon.  314. 

8  James  v.  Frearson,  1  Y.  &  C.  Ch.  375;  Shepherd  v.  McEvers,  4  Johns. 
Ch.  136;  Crocker  v.  Lowenthal,  83  III.  579. 

»  James  v.  Frearson,  mpra  :  Chidgey  v.  Harris,  IG  M.  &  W.  517 ;  But- 
ler ?■.  Baker,  3  Co.  2G  a;  Hanson  v.  Worthiugton,  12  Md.  418;  lloberts  v. 
Woseley,  G4  Mo.  507. 

10  White  V.  Barton,  18  Beav.  192;  Harrison  v.  Graham,  cited  Churchill 

only  to  shares  taken  by  the  tius-  terests  acquired  by  him  in  the  trust 
tee  under  the  instrument  creating  estate.  Doeriug  r.  Doeriug,  42  Ch. 
the  trust,  but  also  to  derivative  in-    D.  203. 

393 


§  261  «.]  ACCEPTANCE    OF   THE    TRUST.  [CHAP.   IX. 

interference  can  be  plainly  referred  to  some  other  ground  of 
action  than  to  an  acceptance  of  the  trust,  as  by  showing  that 
such  a  person  acted,  in  interfering,  as  the  mere  agent  of  an 
acting  trustee.^  The  mere  fact  that  a  person  named  as 
trustee  in  a  deed  takes  the  custody  of  the  deed  until  another 
trustee  can  be  appointed  is  not  an  acceptance,  because  his 
acts  are  plainly  referable  to  another  ground  of  action.  ^ 
While  parol  evidence  is  competent  to  show  whether  a  sup- 
posed trustee  has  or  has  not  accepted  the  trust,  it  is  not  com- 
petent, in  behalf  of  the  trustee,  to  prove  by  such  evidence 
the  conversations  or  declarations  of  the  settlor,  in  order  to 
show  what  property  was  subject  to  the  trust.  ^  A  trustee 
should  take  care  that  his  acts  in  relation  to  the  trust  fund 
are  plainly  referable  to  some  certain  ground  of  action ;  for  if 
his  acts  are  ambiguous,  or  it  is  doubtful  whether  he  intended 
to  accept,  or  to  act  in  some  other  capacity,  the  doubt  will  be 
against  him,  and  he  will  be  construed  to  have  accepted  the 
trust  and  all  its  responsibilities.* 

§  261  a.  Sometimes  a  bond  is  required  by  the  instrument 
creating  the  trust,  and  sometimes  the  grantor  expressly  de- 
sires that  the  trustee  shall  not  be  required  to  give  security. 
In  the  case  of  executors,  statute  law  provides  for  the  giving 

V.  Hobson,  1  p.  Wms.  241  n.  (y) ;  Cummins  v.  Cummins,  8  Ir.  Eq.  723 
Doyle  V.  Blake,  2  Sch.  &  Lef.  231 ;  Malzy  v.  Edge,  2  Jur.  (n.  s.)  80 
Lewis  V.  Baird,  3  McLean,  56  ;  Maccubbin  v.  Cromwell,  7  Gill  &  J.  157 
Penny  v.  Davis,  3  B.  Men.  313. 

1  Stacy  V.  Elph,  1  M.  &  K.  195  ;  Lowry  v.  Fulton,  9  Sim.  115  ;  Dove 
V.  Everard,  1  R.  &  M.  281 ;  Taml.  376 ;  Orr  v.  Newton,  2  Cox,  274  ;  Bal- 
chen  r.  Scott,  2  Ves.  Jr.  678  ;  Carter  v.  Carter,  10  B.  Mon.  327  ;  Judson 
V.  Gibbons,  5  Wend.  224.  And  the  onus  is  on  the  alleged  trustee.  Ken- 
nedy V.  Winn,  80  Ala.  165. 

2  Evans  v.  John,  4  Beav.  35 ;  Smith  v.  Knowles,  2  Grant  Cas. 
413. 

8  Doyle  V.  Blake,  2  Sch.  &  Lef.  240. 

^  Read  v.  Truelove,  Amb.  417;  Chaplin  r.  Givens,  1  Rice,  Eq.  154; 
Doe  V.  Harris,  16  M.  &  W.  517;  Lowry  v.  Fulton,  9  Sim.  115  ;  Conyng- 
ham  V.  Conyngham,  1  Ves.  522  ;  Montgomery  v.  Johnson,  11  Ir.  Eq. 
476. 

394 


CHAP.  IX.]        ACCEPTANCE  OF  THE  TUUST.  [§  202. 

of  a  bond,^  and  in  relation  to  express   trustees  in  general, 
similar  provisions  may  exist.^ 

§  262.  At  common  law  an  executor  was  said  to  derive  his 
authority  from  the  will,  and  not  from  the  appointment  of  the 
probate  court. ^  Therefore  most  of  the  acts  of  persons  nomi- 
nated to  execute  wills  were  valid  before  the  probate  of  the 
will.*  Thus  persons  appointed  by  a  testator  in  his  will  to 
administer  his  estate,  and  execute  the  trusts  created  by  such 
will,  might  assume  the  trusts  and  ])rocced  in  the  execution 
of  them,  without  presenting  the  will  for  proljate;^  and  the 
same  evidence  might  be  used  to  show  that  a  trustee  under  a 
will  had  accepted  such  trust,  and  had  assumed  its  responsi- 
bilities, as  was  admissible  to  show  that  a  trustee  under  a 
deed  had  accepted  the  office.^  But  in  nearly  all  the  United 
States  there  are  statutes  upon  the  subject  which  require  that 
wills  shall  be  presented  for  probate,  and  that  executors  and 
trustees  under  them  shall  give  bonds  for  the  faithful  dis- 
charge of  their  duties.  Where  such  statutes  are  in  force, 
executors  or  trustees  have  no  power  or  authority  to  act  with- 
out appointment  by  the  probate  court,  and  a  refusal  or 
neglect  to  qualify  by  giving  bonds  will  be  considered  a 
refusal  and  disclaimer  of  the  trust. '^     In  the  absence  of  such 

1  See  §  2G2. 

2  Bates  V.  State,  75  Ind.  463;  Hinds  v.  Hinds,  85  Ind.  312;  Tucker  v. 
State,  72  Ind.  242 ;  Thiebaud  v.  Dufour,  54  id.  620. 

*  Toller's  Ex'rs,  95. 

*  Easton  v.  Carter,  5  Exch.  8  ;  Venables  v.  East  Ind.  Co.,2  Exch.  633; 
ToUer's  Ex'rs,  46,  47  ;  Mitchell  v.  Rice,  6  J.  J.  Marsh.  625. 

^  Ibid. ;  Vanhorne  r.  Fonda,  5  Johns.  Ch.  403. 

*  Conyngham  v.  Conynghaiu,  1  Ves.  522 ;  Doyle  ?•.  Blake,  2  Sch.  & 
Lef.  231  ;  James  v.  Frearson,  1  Y.  &  C.  Ch.  370  ;  Maccubbin  r.  Crom- 
well, 7  Gill  &  J.  157;  Godwin  ".  Yonge,  22  Ala.  553  ;  Latimer  r.  Hanson, 
1  Bland,  51;  Flint  v.  Clinton  Co.,  12  N.  II.  432;  Chaplin  v.  Givuns,  1 
Rice,  Eq.  133 ;  Baldwin  v.  Porter,  12  Conn.  473. 

'  Luscomb  i\  Ballard,  5  Gray,  403  ;  Monroe  r.  James,  4  Munf.  195  ; 
Trask  v.  Donahue,  1  Aik.  (Vt.)  373;  Carter  i-.  Carter,  10  B.  Mon.  327; 
Mitchell  ('.  Rice,  6  J.  J.  Marsh.  625 ;  Robertson  r.  Gaines,  2  Humph. 
381  ;  Johnson's  App.,  9  Barr,  416;  Simpson's  App.,  id. ;  Wood  r.  Sparks, 

1  Dev.  &  Bat.  396 ;  Miller  v.  Meetch,  8  Barr,  417;  Roseboom  v.  Moshier, 

2  Denio,  61;  Williams  v.  Cushlng,  34  Maine,  370;  Deering  v.  Adams,  37 

395 


§  262.]  ACCErXANCE    OF   THE   TRUST.  [CHAP.    IX. 

statutes,  if  ii  person  named  as  executor  procures  probate  of 
the  will,  lie  will  thereby  constitute  himself  executor  with  all 
the  liabilities  attached  to  the  office,^  and  if  the  same  person 
is  appointed  executor  and  trustee,  probate  of  the  will  by  him 
will  be  an  acceptance  of  the  trusts.''^  (a)  But  the  same  person 
may  be  appointed  both  executor  and  trustee  under  a  will  in 
such  a  manner  that  he  may  accept  one  of  the  offices  and  de- 
cline the  other.  As  if  a  man  is  appointed  executor,  and 
as  executor  is  to  act  as  a  trustee,  in  such  case  the  probate 
of  the  will,  and  qualification  as  executor,  will  be  an  accept- 
ance of  the  trust. 2  But  if  from  the  will  it  appears  that  the 
testator  intended  to  give  his  trustees  a  distinct  and  inde- 
pendent character,  probate  of  the  will  by  the  executors  will 
not  make  them  trustees,  unless  they  also  accept  the  trust 

id.  265 ;  Knight  v.  Loomis,  30  id.  208 ;  Groton  v.  Ruggles,  17  id.  137 ; 
Hanson  v.  Worthington,  12  Md.  418;  Sawyer's  App.,  IG  N.  H.  459  ;  Gas- 
kill  V.  Gaskill,  7  R.  I.  478;  Mahony  v.  Hunler,  30  Ind.  24G;  infra, 
§  264,  n.  In  many  of  the  States  there  are  statutes  that  authorize  the 
judges  of  probate  to  appoint  executors  or  trustees  under  wills,  without 
requiring  bonds  with  sureties,  if  the  testator  request  it  in  his  will,  or  if 
all  the  parties  in  interest,  being  sui  Juris,  request  it  in  writing.  In  such 
cases  the  court  proceeds  with  great  caution,  and  it  may  at  any  time  re- 
quire security  if  the  circumstances  seem  to  require  it.  Gibbs  v.  Gui- 
gnard,  1  S.  C.  359.  The  omission  to  give  the  bond  required  does  not 
divest  the  trustee  of  the  legal  title.     Gardner  v.  Brown,  21  Wall.  36. 

1  Booth  V.  Booth,  1  Beav.  125 ;  Ward  v.  Butler,  2  Moll.  533 ;  Styles  v. 
Guy,  1  Mac.  &  G.  431 ;  Scully  v.  Delaney,  2  Ir.  Eq.  105 ;  and  see  Balchen 
r.  Scott,  2  Ves.  Jr.  678;  Peeble's  App.,  15  Serg.  &  R.  39;  Worth  v.  Mc- 
Aden,  1  Dev.  &  Bat.  Eq.  209 ;  Cummins  v.  Cummins,  3  Jon.  &  La.  64 ; 
Hanson  v.  Worthington,  12  Md.  418. 

2  Mucklow  V.  Fuller,  Jac.  198  ;  Williams  v.  Nixon,  2  Beav.  472  ;  Clarke 
V.  Parker,  19  Ves.  1;  Cummins  v.  Cummins,  3  Jon.  &  La.  64;  Hanson  v. 
Worthington,  12  Md.  418;  Baldwin  v.  Porter,  12  Conn.  473. 

s  De  Peyster  v.  Clendining,  8  Paige,  295;  Hanson  v.  Worthington,  12 
Md.  418;  Williams  v.  Conrad,  30  Barb.  524;  Mucklow  v.  Fuller,  Jac. 
198  ;  Booth  v.  Booth,  1  Beav.  125  ;  Williams  v.  Nixon,  2  Beav.  472 ; 
W^ard  V.  Butler,  2  Moll.  533 ;  Wilson's  Estate,  2  Penn.  St.  325. 

(a)  In  the  case  of  money  given  trust,  and  pay  the  interest  only  to 
by  will  to  one  person  for  life,  with  the  person  entitled  for  life.  Bul- 
remainder  over,  if  no  trustee  is  lard  r.  Chandler,  149  Mass.  532, 
specially  named  or  appointed,  the  537 ;  White  v.  Mass.  Inst,  of  Tech- 
executor  is  to  hold  the  money  in  nology,  171  Mass.  84. 
396 


CHAP.    IX.]  ACCEPTANCE   OF   THE   TRUST.  [§  262. 

and  qualify  themselves  according  to  law.^  If  the  executor  is 
not  expressly  appointed  trustee,  the  court  may  determine 
from  the  whole  will  whether  he  is  to  act  as  trustee.'^  If  the 
trust  is  given  to  one  named,  and  the  same  person  is  after- 
wards appointed  executor,  the  trust  is  not  annexed  to  the 
office  of  executor. 3  The  conditions  of  bonds  of  administra- 
tors are  to  administer  the  estate  according  to  law.  Bonds 
of  executors  are  conditioned  to  administer  an  estate  accord- 
ing to  the  will,  though  a  condition  to  administer  according 
to  law  is  the  same  thing,  because  by  law  they  are  to  admin- 
ister according  to  the  will.  If,  therefore,  by  the  terms  of 
the  will  the  executor,  as  executor,  is  to  keep  the  estate,  or 
any  portion  of  it,  in  his  hands,  and  is  to  deal  with  it  as  a 
trustee,  his  bond  will  be  held  as  security  for  the  faithful  per- 
formance of  his  duties,  though  such  duties  are  much  larger 
and  different  from  those  of  an  ordinary  executor.^  Where 
the  income  of  property  is  given  to  one  for  life,  and  at  his 
death  the  property  is  given  over  to  another,  and  no  trustee 
is  named  in  the  will,  the  executor  is  the  trustee  to  hold  the 
property  during  the  life  of  the  legatee  for  life.^  If,  how- 
ever, the  will  contemplates  that  the  executor,  as  such,  is  to 
perform  only  the  ordinary  duties  of  an  executor,  and  that 
when  the  estate  is  settled  by  him,  another  duty  is  to  arise  to 

1  De  Peyster  v.  Clendining,  8  Paige,  295  ;  Worth  v.  McAden,  1  Dev. 
&Bat.  209;  Judson  t;.  Gibbons,  5  Wend.  22G;  Williams  v.  Gushing,  31 
Maine,  370;  Bearing  v.  Adams,  37  id.  205  ;  Knight  v.  Loomis,  30  id.  204; 
Hanson  v.  Worthington,  12  I\Id.  418;  Wheatley  v.  Badger,  7  Peun.  St. 
459.     But  see  Anderson  v.  Earle.  9  S.  G.  4G0. 

2  Sawyer's  App.,  16  N.  H.  459 ;  Garson  v.  Carson,  6  Allen,  397;  How- 
ard V.  Amer.  Peace  Soc.,  49  Maine,  288,  306.  An  executor  must  admin- 
ister the  trust  created  by  will  where  there  is  no  designation  of  the  execu- 
tor or  any  other  person  as  trustee.  Pettingill  v.  Pettingill,  60  Maine,  412; 
Richardson  v.  Knight,  69  id.  385. 

8  James's  App.,  3  Grant,  169. 

*  Saunderson  v.  Stearns,  6  Mass.  37;  Prescott  i-.  Pitts,  9  Mass.  376; 
Hall  V.  Gushing,  9  Pick.  395;  Dorr  v.  Wainwright,  13  Pick.  328;  Towne 
V.  Ammidown,  20  Pick.  325;  Perkins  v.  Moore,  16  Ala.  9 ;  State  v.  Nicols, 
10  Gill  &  J.  27;  Wilson's  Estate,  2  Peuu.  St.  325;  Sheet's  Est.,  52  id. 
257  ;  Lansing  i'.  Lansing,  45  Barb.  182. 

6  Wheeler  v.  Perry,  18  N.  H.  307. 

397 


§  263.]  ACCEPTANCE   OF   THE   TRUST.  [CIIAP.   IX. 

be  performed,  cither  by  him  or  by  another,  then  the  bond  of 
the  executor  is  not  security  for  those  further  duties ;  but  the 
person  who  is  to  perform  them  must  accept  the  office,  and 
give  a  bond  for  their  performance.^  It  may  be  further 
observed,  that  an  executor  will  be  considered  as  holding  a 
legacy  in  his  capacity  as  executor,  unless  the  will  clearly 
shows  that  the  testator  intended  that  he  should  hold  it  in  the 
character  of  a  trustee. ^  But  after  the  lapse  of  twenty  years 
the  law  will  presume  that  an  estate  was  fully  administered, 
and  that  thereafter  the  executor  held  the  funds  as  trustee.^ 
So,  if  it  appears  that  the  executor  made  an  actual  final  settle- 
ment of  the  estate  as  executor,  he  will  be  presumed  to  hold 
subsequently  as  a  trustee.^  As  a  general  rule,  executors' 
and  trustees'  bonds  can  be  sued  only  by  leave  of  court,  upon 
good  cause  shown.  ^ 

§  2G3.  If  the  same  person  is  both  executor  and  trustee,  it 
is  sometimes  difficult  to  determine  whether,  in  a  particular 
case,  he  is  acting  as  executor  or  trustee.  In  England,  the 
rule  seems  to  be  that  if  the  executor  assents  to  the  legacy, 
if  it  is  specific,  or  if  part  of  the  assets  are  clearly  set  apart 
and  appropriated  by  him  to  answer  a  particular  legacy,  he 
will  be  considered  to  hold  the  fund  as  trustee  for  that  trust, 
and  not  as  executor.^  In  jurisdictions  where  executors  and 
trustees  are  required  to  qualify  and  give  bonds,  it  has  been 
held  that  an  executor,  who  is  also  a  trustee  under  the  will, 
cannot  be  considered  as  holding  any  part  of  the  assets  as 
trustee,  until  he  has  settled  his  account  at  the  probate  office 

1  Knight  V.  Loomis,  30  Maine,  204;  Mastin  v.  Barnard,  33  Ga.  520; 
Perkins  v.  Lewis,  41  Ala.  641;  Parsons  v.  Lyman,  5  Blatch.  C.  C.  170; 
Spark's  Est.,  1  Tuck.  Sur.  443. 

2  State  V.  Nicols,  10  Gill  &  J.  27. 
*  Jennings  v.  Davis,  5  Dana,  127. 
4  State  V.  Hearst,  12  Miss.  365. 

6  Floyd  V.  Gilliam,  6  Jones,  £q.  183. 

«  Dix  V.  Burford,   19   Beav.   409;  Brougham  v.  Poulett,  id.  119;  Ex 
parte  Dover,  5  Sim.  500 ;  Phillipo  v.  Munnings,  2  M.  &  Cr.  309  ;  Byrchall 
V.  Bradford,  6  Madd.  13 ;  Ex  parte  Wilkinson,  3  Mont.  &  Ayr.  145 ;  Will- 
mot  V.  Jenkins,  1  Beav.  401. 
398 


CHAP.  IX.]       ACCEPTANCE  OF  THE  TKUST.  [§  2G3. 

as  executor,  and  has  been  credited  with  the  amount  as  exec- 
utor with  whicli  lie  is  afterwards  to  be  charged  as  trustee.^ 
In  other  cases  it  has  been  held  that  the  change  of  property 
from  the  executor  to  the  trustee,  where  tliey  are  the  same 
persons,  may  be  shown  by  some  authoritative  and  notorious 
act  ;'^  but  that  the  mere  determination  of  the  executor,  in  his 
own  mind,  to  hold  certain  particular  property  thereafter  in 
trust  for  a  particular  legatee  under  the  will,  is  not  such  a 
setting  apart  as  to  discharge  him  from  his  liability  as  exec- 
utor, and  to  charge  him  as  trustee. ^  (a)  Where  the  executor 
may  thus  act  in  a  double  capacity,  he  must  account  in  his 
capacity  as  executor,  and  the  sureties  on  his  bond  as  executor 

1  Hall  V.  Gushing,  9  Pick.  395;  Trior  v.  Talbot,  10  Cush.  1  ;  Perkins 
V.  Moore,  IG  Ala.  9 ;  Elliott  v.  Sparrell,  114  Mass.  404  ;  Muse  v.  Sawyer, 
T.  K.  204. 

2  Newcomb  7'.  Williams,  9  Met.  534;  Conkey  v.  Dickinson,  13  Met, 
53;  Hubbard  {•.  Lloyd,  6  Cush.  522;  De  Peyster  v.  Clendining,  8  Paige, 
310;  Byron  v.  Mood,  2  McMull.  2S8;  Hitchcock  v.  Bank  of  U.  S.,  7  Ala. 
386;  Perkins  v.  Moore,  16  Ala.  9;  State  v.  Brown,  08  N.  C.  554  ;  Tyler 
V.  Deblois,  4  Mason,  131.  A  defaulting  trustee  who  becomes  entitled  to 
a  portion  of  the  trust,  being  one  of  the  next  of  kin  to  a  deceased  cestui  que 
trust,  will  be  held  to  have  paid  himself,  and  the  share  standing  to  his 
account  on  distribution  will  be  paid  to  the  other  cestui  que  trust,  to  the 
extent  of  the  defalcation.  Jacobs  v.  Ryland,  L.  R.  15  Eq.  341.  See 
Ruffin  V.  Harrison,  81  N.  C.  208,  in  which  the  court,  from  an  examina- 
tion of  the  cases  cited,  deduced  the  following  principles:  1.  Where  the 
simple  relation  of  debtor  and  creditor  exists,  and  the  same  person,  repre- 
senting both,  is  to  pay  and  receive,  the  possession  of  assets  which  ought 
to  be  applied  to  the  debts  is  in  law  an  application.  2.  Where  one  is 
clothed  with  a  double  fiduciary  capacity,  and  the  balance  remaining  upon 
a  full  execution  of  one  trust  belongs  to  the  other,  if  the  amount  has  been 
ascertained  definitely  and  authoritatively,  and  the  fund  is  then  in  the 
trustee's  hands,  the  law  makes  the  transfer.  3.  If  the  first  trust  is  not 
closed,  although  the  trustee  may  have  rendered  an  account,  which  has  not 
been  passed  upon  by  a  competent  tribunal,  the  fund  remains  unchanged, 
and  is  held  as  before.  4.  The  trustee  may,  by  an  unequivocal  act  indi- 
cating the  intent,  elect  to  hold  the  fund  in  possession  in  another  capacity, 
and  it  will  be  thereby  transferred. 

8  Miller  r.  Congdon,  14  Gray,  114.  The  question,  in  this  case,  was 
whether  the  estate  or  the  legatee  should  suffer  a  certain  loss  ;  but  it  was 
not  a  question  whether  the  executor  should  bear  the  loss  in  person. 

(a)  See  In  re  Smith,  42  Ch.  D.  302. 

399 


§  264.]  ACCEPTANCE    OF   THE    TRUST.  [CHAP.    IX. 

will  1)C  liable  for  the  faithful  discharge  of  his  duties  as  such, 
until  he  has  transferred  his  account  to  himself  as  trustee,  and 
given  a  bond  as  trustee.^  But,  at  the  same  time,  it  is  held 
that  if  the  executor,  acting  as  trustee  under  such  <a  will, 
acts  with  fidelity  and  due  diligence,  he  and  his  sureties  will 
not  be  responsible  should  any  loss  happen  either  to  the 
principal  or  interest  of  the  trust  fund;  that  is,  that  his  lia- 
bility in  such  a  case  is  rather  that  of  a  trustee  than  that  of 
an  executor; 2  and  if  he  has  acted  in  good  faith  in  the  invest- 
ment of  the  legacy,  any  loss  that  may  occur  without  his  fault 
will  fall  upon  the  legatee  or  cestui  que  trust,  and  not  upon 
him  or  the  estate.^  Where  a  decree  in  chancery  created  a 
separate  estate  for  a  married  woman,  and  the  court  appointed 
a  trustee  to  receive  it,  and  ordered  him  to  give  bond  for  the 
faithful  administration  of  the  trust,  the  property  vested  in 
him  upon  his  giving  bond,  and  continued  during  his  life; 
and,  at  his  death,  it  did  not  vest  in  the  cestui  que  trust,  but 
remained  subject  to  the  orders  of  the  court.* 

§  264.  The  executor  of  an  executor,  by  accepting  the  office 
from  his  immediate  testator,  becomes  the  executor  and  trus- 
tee of  his  testator's  testator.  This  is  the  rule  in  England, 
where  an  executor  comes  into  possession  of  all  the  assets  in 
the  hands  of  his  testator,  in  whatever  capacity  such  testator 
held  them ;  and,  by  accepting  the  duty  of  administering  the 
estate  of  his  immediate  testator,  he  accepts  the  duty  of  ad- 
ministering all  the  trusts  with  which  the  assets  in  his  testa- 
tor's hands  were   charged.^    An  executor  must  administer 


1  Prior  V.  Talbot,  10  Cush.  1.  A  charge  of  the  amount  set  apart  in 
executor's  account  settled  in  probate  court  is  conclusive  against  the  ex- 
ecutor.    Elliott  V.  Sparrell,  114  Mass.  404. 

2  Hubbard  v.  Lloyd,  6  Cush.  522  ;  Brown  v.  Kelsey,  2  Cush.  248 ;  Dorr 
r.  Wainwright,  13  Pick.  332;  Right  v.  Cathill,  5  East,  491  ;  Denne  u. 
Judge,  11  East,  288. 

8  Ibid. 

4  Witter  V.  Duley,  36  Ala.  135. 

6  In  the  Goods  of  Perry,  2  Curt.  655;  Goods  of  Beer,  15  Jur.  160; 
Shep.  Touch,  by  Preston,  464 ;  Wankford  v.  Wankford,  Freem.  520;  Hay- 
400 


CHAP.  IX.]       EXECUTOR  OF  AN  EXECUTOR.  [§  264. 

an  account  for  all  tlio  assets  that  come  to  his  liands.  If  his 
testator  liehl  goo<ls  of  a  previous  testator  iinachMinistered,  or 
if  liis  testator  held  assets  as  a  trustee,  probate  courts  may 
appoint  an  administrator  witli  the  will  annexed  of  the  first 
testator,  or  a  new  trustee;  and  it  will  be  the  duty  of  the  ex- 
ecutor of  the  last  testator  to  settle  an  account  with  the  ad- 
ministrator with  the  will  annexed,  or  with  the  new  trustee, 
and  to  pay  over  to  them  the  assets  that  came  to  liis  hands. 
Until  such  proceedings  are  had,  he  will  hold  such  assets 
upon  the  same  terms  and  trusts  that  his  testator  held  them ; 
and  it  will  be  his  duty  to  administer  them  accordingly.  The 
proposition  may  be  brielly  stated  thus:  An  executor,  in 
proving  the  will  and  in  accepting  the  office  from  his  imme- 
diate testator,  accepts  not  only  all  the  trusts  imposed  l)y  the 
immediate  will  under  which  he  acts,  but  also  all  the  trusts 
in  respect  to  the  assets  which  come  to  his  hands  with 
which  his  immediate  testator  was  charged;  and  he  must 
execute  those  trusts  until  he  is  relieved  by  a  new  appoint- 
ment in  the  probate  court,  and  a  settlement  and  payment 
over  of  the  assets.  He  will  not  be  allowed  to  accept  the 
trusts  created  by  his  immediate  testator,  and  to  repudiate 
those  with  which  his  testator  was  himself  charged. ^  And 
so,  a  trustee  cannot  limit  his  acceptance  and  liability  to  any 
particular  portion  of  the  trust.  For  if  he  acts  at  all,  though 
he  disclaim  a  part  he  will  be  held  to  have  accepted  the  entire 
trust; 2  as  if  one  is  aj)pointed  trustee  of  real  and  personal 
estate,  and  he  deals  with  the  personal,  he  will  be  deemed  to 

tan  V.  Wolfe,  Cro.  eTac.  611;  Palm.  15G  ;  Hutfc,  30;  Schenck  r.  Schenck, 
IG  N.  J.  Eq.  171 ;  IMaudlin  v.  Armisted,  18  Ala.  702  ;  Nichols  r.  Camp- 
bell, 10  Gratt.  5G1.  See  Knight  i\  Looniis,  30  Me.  204,  where  it  is  said 
that  an  administrator  cle  bonis  nnn  under  the  will  of  a  trustee  is  not  con- 
stituted trustee  by  his  appointment. 

1  Worth  V.  McAden,  1  Dev.  &  Bat.  199  ;  Mitchell  v.  Adams,  1  Ired. 
(Law)  298;  King  v.  Lawrence,  11  Wis.  238 ;  Schenck  v.  Schenck,  1  Green, 
Ch.  174. 

2  Urch  V.  Walker,  3  M.  &  Cr.  702;  Read  i-.  Truelove,  Amb.  417;  Doyle 
V.  Blake,  2  Sch.  &  Lef.  231;  Van  Horn  v.  Fonda,  5  Johns.  Ch.  403; 
Champlin  v.  Givens,  1  Rice,  Eq.  154  ;  Cummins  v.  Cummins,  3  Jon.  &  La. 
64;  Latimer  v.  Hanson,  1  Bland,  51;  Flint  v.  Clinton  Co.,  12  N.  H.  432. 

VOL.  1—26  401 


§  265.] 


DISCLAIMER    OF   THE   TRUST. 


[chap.  IX. 


have  accepted  the  entire  trust  ;^  and  so,  if  the  same  instru- 
ment appoints  him  to  two  distinct  trusts,  he  cannot  divide 
them.  2  {a) 

§  265.  If  a  person  wrongfully  interferes  with  the  assets  of 
a  deceased  person,  he  may  become  an  administrator  or  exec- 
utor cle  son  tort.  So,  if  a  person  by  mistake  or  otherwise 
assumes  the  character  of  trustee,  and  acts  as  such,  when  the 
office  does  not  belong  to  him,  he  thereby  becomes  a  trustee 
de  son  tort,  and  he  may  be  called  to  account  by  the  cestui  que 
trust  for  the  assets  received  under  color  of  the  trust.  ^  (h) 

1  Ward  V.  Butler,  2  Moll.  533. 

2  Urch  V.  Walker,  3  M.  &  Cr.  702;  Judice  v.  Prevost,  18  La.  An.  601. 

3  Pearce  v.  Pearce,  22  Beav.  248 ;  Life  Ass'i>  v.  Siddall,  3  De  G.,  F.  & 
J.  58  ;  Hennessey  i'.  Bray,  33  Beav.  9G  ;  Rackham  v.  Siddall,  16  Sim.  297: 
1  Mac.  &  G.  607. 


(a)  AVhen  the  same  person  is 
nominated  by  a  will  as  both  execu- 
tor and  trustee,  one  of  these  trusts 
may  be  accepted  and  the  other  dis- 
claimed, if  the  testator  has  not 
directed  otherwise;  and,  in  general, 
the  disclaimer  of  one  of  several 
trusts,  when  independent  and  cre- 
ated by  the  same  instrument,  does 
not  prevent  acceptance  of  the  other 
trusts.  Re  Cunard's  Trusts,  48 
L.  J.  N.  s.  192;  Daggett  v.  White, 
128  Mass.  398;  Carruth  v.  Carruth, 
148  Mass.  431.  A  trustee  of  both 
English  and  foreign  property  can- 
not make  a  partial  disclaimer  of  the 
trusts  of  the  English  property  and 
retain  control  of  the  foreign  prop- 
erty, /n  re  Lord  and  Fullerton's 
Contract,  [1896J  1  Ch.  228. 

A  disclaimer  should  be  executed 
without  delay,  but  there  is  no  abso- 
lute rule  that  it  must  be  executed 
within  any  particular  time.  Jago  v. 
402 


Jago,  68  L.  T.  654.  Yet  non-action, 
if  long  continued,  or  other  acts,  may 
amount  to  a  disclaimer  by  conduct. 
Brandon  v.  Carter,  119  Mo.  .572; 
Mutual  Life  Ins.  Co.  v.  Woods,  4 
N.  Y.  S.  133.  A  person  who  by 
conduct  disclaims  the  office  of  trus- 
tee under  a  will,  disclaims  the  legal 
estate  thereby  devised  to  him.  In 
re  Birchall,  40  Ch.  D.  436.  Failure 
to  qualify  or  to  give  bond  is  treated 
as  a  disclaimer,  or  else  as  cause  for 
removal,  under  the  statutes  of  the 
different  States.  Supra,  §  262.  See 
Pvothschild  V.  Frank,  43  N.  Y.  S. 
951 ;  Foss  v.  Sowles,  62  Vt.  221 ; 
Ex  parte  Kilgore,  120  Ind.  94  ;  Sneer 
V.  Stutz,  102  Iowa,  402  ;  Lamar  »'. 
Walton,  99  Ga.  356. 

(b)  Such  a  trustee  must  have 
actually  intermeddled  with  or  had 
control  of  the  trust  property.  In  re 
Barney,  [1892]  2  Ch.  265;  supra, 
§  245,  n.  (a). 


CHAP.    IX.]  DISCLAlMEli   OK   THK   TRUST.  [§  2G7. 

§  266.  When  trustees  have  accei)ted  tlie  olTice,  they  ought 
to  bear  in  mind  tluit  the  law  knows  no  such  person  as  a 
passive  trustee,  and  that  they  cannot  sleep  upon  their  trust. 
If  such  trustee  remains  quiet  for  any  reason,  and  suffers 
some  other  to  do  all  the  business,  and  yet  executes  formal 
papers,  as  a  power  of  attorney  for  the  sale  of  stock,  or  a  re- 
lease or  discharge  of  mortgages  on  payment,  he  is  answerable 
for  the  money  as  if  he  had  conducted  the  business.  And 
further,  the  trustee  should  make  himself  acquainted  with 
the  nature  and  circumstances  of  the  {)roperty;  for  though 
he  is  not  responsible  for  anything  that  happens  before  his 
acceptance  of  the  trust, ^  yet  if  a  loss  occurs  from  any  want  of 
attention,  care,  or  diligence  in  him  after  his  acceptance,  he 
may  be  held  responsible  for  not  taking  such  action  as  was 
called  for. 2 

§  267.  It  has  been  seen  that  a  person  named  as  trustee, 
either  in  a  deed  or  will,  may  decline  the  office  and  disclaim 
the  estate.^  If  he  does  so,  he  ought  to  execute  an  effectual 
disclaimer  without  delay,  for  after  a  long  interval  of  time  it 
will  be  presumed  that  he  accepted  the  office*  If  a  person 
knows  of  his  appointment,  and  lies  by  for  a  long  time,  it  is 
for  the  court  to  say  whether,  under  all  the  circumstances, 
such  acquiescence  was  an  assent  to  the  trust. ^  Hut  if  a 
trustee  does  no  act  in  the  office,  there  is  no  rule  that  requires 
him  to  disclaim  within  any  particular  time.  Thus,  he  may 
disclaim  after  sixteen  years  if  the  delay  can  be  so  ex])lained 
as  to  rebut  the  presumption  of  an  acceptance.^     A  disclaimer 

1  Greaves  v.  Strahan,  S  De  G.,  M.  &  G.  291  ;  Prindle  r.  Holcombe,  45 
Coun.  Ill;  Stevens  v.  Gaylord,  11  Mass.  269:  Tps    Mannf.  Co.  r.  ."^itory, 

5  Met.  310;  LeJand  v.  Felton,  1  Allen,  531  ;  Kinnev  r.  EnsiLMi.  18  Pick. 
236. 

2  England  c.  Downes,  6  Beav.  269,  270;  Townley  /•.  Bond,  2  Conn.  & 
Laws.  405;  James  v.  Frearson,  1  Y.  &  C  Ch.  270;  Taylor  v.  Millini:- 
ton,  4  Jur.  (x.  s.)  204 ;  Ex  parte  Greaves,  25  L.  J.  53;  2  Jur.  (x.  s.)  253  : 
Malzy  r.  Edjre,  2  Jur.  (s.  s.)  8. 

8  Ante,  §  2.50.  *  Ibid. 

5  Doe  r.  Harris,  16  M.  &  W.  517;  P.iddon  v.  Richardson,  7  De  G..  M. 

6  G.  563 ;  James  v.  Frearson,  1  Y.  &  C.  Ch.  370. 

«  Noble  r.  Meymott,  14  Beav.  471 ;  Doe  v.  Harris,  16  M.  &  W.  517. 

403 


§  268.]  DISCLAIMEE   OF   THE   TRUST.  [CHAP.   IX. 

will  take  effect  as  of  the  time  of  the  gift,  and  will  prevent 
the  estate  from  vesting  in  the  trustee  disclaiming;  therefore, 
a  disclaimer,  whenever  made,  will  relate  back  to  the  time  of 
the  gift,  if  the  party  disclaiming  has  done  no  act  which  may 
be  construed  into  an  acceptance.  It  is  therefore  immaterial 
when  the  mere  formal  instrument  of  disclaimer  is  executed, 
provided  that  nothing  has  intervened  to  vest  the  estate  in 
the  trustee.^ 

§  268.  If  a  person  has  once  accepted  the  office,  either  ex- 
pressly or  by  implication,  it  is  conclusive;  and  he  cannot 
afterwards,  by  disclaimer  or  renunciation,  avoid  its  duties 
and  responsibilities.^  And  the  reason  is,  that,  if  the  estate 
has  once  vested  in  the  trustee,  it  cannot  be  divested  by  a 
mere  disclaimer,  or  renunciation,  nor  can  he  convey  the 
estate  against  the  consent  of  the  cestui  que  trust  without  com- 
mitting a  breach  of  trust,  unless  the  instrument  creating  the 
trust  gives  him  that  power,  or  unless  there  is  the  decree  of  a 
court  to  that  effect.  In  such  case  the  trustee  may  resign  the 
trust,  and  convey  the  estate  in  the  manner  pointed  out  in  the 
instrument  creating  the  trust,  if  it  speaks  upon  that  subject; 
or  the  trustee  may  decline  the  office,  and  convey  the  estate  to 
a  new  trustee,  by  the  agreement  of  all  the  parties  in  interest, 
if  they  are  competent  to  act,  and  consent  to  the  arrangement. 
But  if  the  parties  do  not  consent,  or  if  there  are  minor  chil- 
dren, married  women,  insane  persons,  or  others  incompetent 
to  act,  a  trustee,  after  he  has  once  accepted  the  office,  can 
only  be  discharged  by  decree  of  a  court  having  jurisdiction, 
and  upon  proper  proceedings  had.^ 

1  Stacy  r.  Elph,  1  M.  &  K.  195-199. 

2  Conyngrhatn  r.  Conyncfliarn,  1  Ves.  522  ;  T?ead  v.  Tnielove,  Amh.  417; 
Doyle  V.  Blake,  2  Sch.  &  Lef.  231  ;  Rtaceyr.  Elph,  1  M.  &  K.  195;  Cruger 
V.  Halliday,  11  Paiee,  314;  Shepherd  i7.  McEvers,  4  Johns.  Ch.  136;  Lati- 
mer V.  Hanson,  1  Bland,  51  ;  Jones  v.  Stockett,  2  Bland,  409  ;  Chaplin  v. 
Givens,  1  Bice,  Eq.  133;  Perkins  v.  McGavock,  3  Hay,  265;  Drane  v. 
Gunter.  19  Ala.  731 ;  Stronjr  ?'•  Willis.  3  Fla.  124;  Thatcher  v.  Corder,  2 
Keyes,  157;   Armstrong:  v.  Merrill,  14  Wall.  138. 

8  Conrtenav  v.  Conrtenav,  Jo.  Si  Lat.  519  ;  Foreshow  ?'.  Hisrc^inson.  20 
Beav.  485 ;  Greenwood  v   Wakeford,  1  Beav.  576 ;  Coventry  v.  Coventry, 

404 


CHAP.    IX.]  DISCLAIMER    OF   THE    TRUST.  [§  270. 

§  269.  If  a  person  acceptH  a  trust  and  dies,  his  heir  cannot 
renounce  or  dischiim  it.  The  acceptance  vested  the  estate 
in  tiic  trustee,  and  tlie  law  at  his  death  cast  it  upon  the  heir; 
and  the  heir  cannot  divest  or  rejnidiate  the  estate  hy  a  mere 
discUiinier. *  Cut  if  the  heir  is  so  named  in  the  original  in- 
strument oi"  trust  that  he  takes  the  estate  hy  purchase,  and 
not  Ijy  inheritance  or  descent,  or  if  he  comes  in  under  some 
arrangement,  as  a  special  occupant,  he  may  use  his  own 
judgment  in  accepting  or  refusing  the  estate  charged  with 
the  trust.2  In  most  of  the  United  States  there  are  special 
provisions  hy  statute  regulating  the  resignation  of  trustees, 
and  the  proceedings  to  be  had  upon  their  death,  for  the 
preseiTation  of  the  trust  estates  and  the  appointment  of  new 
trustees.  If  a  person  is  appointed  trustee  and  has  neither 
accepted  nor  disclaimed  during  his  life,  it  is  an  ojjcn  ques- 
tion whether  his  heir  or  personal  representative  can  disclaim 
after  his  death.  The  question  was  raised  in  Goodson  v. 
Ellison,^  but  was  left  undecided.  Mr.  Hill  thinks  that  a 
disclaimer  by  the  heir  may  be  supported  on  principle.^  A 
later  case  seems  strongly  to  imply  that  the  heir  cannot  dis- 
claim.^ If  an  acting  trustee  dies,  a  person  named  cotrustee 
with  him  may  disclaim  after  his  death,  if  the  one  disclaim- 
ing has  done  no  act  amounting  to  an  acceptance.^ 

§  270.  It  was  the  clear  opinion  of  Lord  Coke,  that  if  a 
freehold  vested  in  a  person  by  feoffment,  grant,  or  devise,  it 
could  not  be  divested  except  by  matter  of  record;  and  this 
rule  was  established  in  order  that  a  suitor  might  know,  with 
more  certainty,  who  was  the  tenant  to  i\\Q  prcecipe  ;'  but,  as 

1  Keen.  758;  Cruder  v.  Ilalliday.  H  Paige.  314  ;  Drane  v.  Guiitor,  10  Ala. 
731  ;  Shepherd  v.  INIcEvers,  4  Johns.  Ch.  136  ;  Diefendorf  v.  Spraker,  10 
N.  Y.  246;  Re  Bern.stoin,  3  Redf.  (N.  Y.)  20. 

1  Co.  Litt.  9  a;  3  Cm.  Dig.  318  ;  Humphrey  v.  :Morse,  2  Atk.  408. 

2  Creaprh  v.  Blood,  3  Jon.  &  La.  170. 

8  Condson  v.  Ellison,  3  Russ.  .'583,  587. 
4  Hill  on  Trustees,  222  (4th  ed.). 
6  King  V.  Phillips,  16  Jiir.  1080. 
«  Stacey  v.  Elph,  1  M.  &  K.  195. 

f  Butler  &  Baker's  Case,  3  Co.  26  a,  27  a  ;  Anon.  4  Leon.  207;  Shep. 

•i05 


§  270.]  DISCLAIMER   OF   THE   TRUST.  [CHAP.   IX. 

a  gift  is  not  perfect  in  law  until  it  is  accepted  by  the  assent 
of  the  donee,  a  disclaimer  oi)cratcs  as  evidence  that  the 
donee  never  assented,  and  consequently  that  the  estate  never 
vested  in  him.  Accordingly,  it  is  now  established  that  a 
parol  disclaimer  is  sufficient  in  all  cases  of  a  gift  by  deed  or 
will  of  both  real  and  personal  estate.^  And  so  a  trust  may 
be  repudiated  without  an  express  disclaimer,  as  by  evidence 
of  the  conduct  of  the  party  amounting  to  a  refusal  of  the 
office,^  or  by  any  conduct  inconsistent  with  an  acceptance; 
and  a  disclaimer  may  be  presumed  after  a  long  neglect  to 
qualify  or  refusal  to  act.^  But  the  parol  expressions  of  a 
refusal  of  the  trust,  or  parol  evidence  of  conduct  inconsistent 
with  an  acceptance,  must  be  unequivocal,  and  extend  to  a 
renunciation  of  all  interest  in  the  property;  for  if  such  re- 
fusal or  conduct  is  coupled  with  a  claim  to  the  estate  of 
another  character,  it  will  not  amount  to  a  disclaimer.^  But 
a  person  would  act  very  imprudently  who  allowed  so  impor- 
tant a  question,  as  whether  he  was  a  trustee  or  not,  to  be  a 
matter  of  inference  and  construction  from  conversations  or 
conduct.^ 

Touch.  285,  452;  Bonifant  v.  Greenfield,  Godb.  79 ;  Siggers  v.  Evans, 
5  El.  &  Bl.  380. 

1  Townson  v.  Tickell,  3  B.  &  Al.  31 ;  Stacey  v.  Elph,  1  M.  &  K.  198 
Bonifant  i'.  Greenfield,  Cro.  Eliz.  80;  Smith  v.  Smith,  6  B.  &  C.  112 
Begbie  v.  Crook,  2  Bing.  N.  C.  70;  2  Scott,  128 ;  Shep.  Touch.  282,  452 
Smith  V.  Wheeler,  1  Ventr.  128;  Thompson  v.  Leach,  2  Ventr.  198;  Rex 
r.  Wilson,  5  Man.  &  R.  140  ;   Small  v.  Marwood,  4  id.  190 ;  Foster  i-  Daw- 
ber,  1  Dr.  &   Sm.  172;  Re  Ellison's  Trust,  2  Jur.   (n.  s.)  62;  Doe  v. 
Smith,  9  D.  &  R.  136 ;  Bingham  v.  Clanniorris,  2  Moll.  253  ;  Peppercorn 
V.  Wayman,  5  De  G.  &  Sm.  230;  Doe  v.  Harris,  16  M.  &  W.  517;  Thomp- 
son V.  Meek,  7  Leigh,  419  ;  Roseboom  v.  Moshier,  2  Denio,  61 ;  Coram,  r. 
Mateer,  16  Serg.  &  R.  416;    Nicolson  v.  Wordsworth,  2  Swanst.   369; 
Adams  v.  Taunton,  5  Madd.  435 ;  Miles  v.  Neave,  1  Cox,  159 ;  Sherratt 
V.  Bentley,  1  Russ.  &  ^M.  655 ;  Norway  v.  Norway,  2  M.  &  K.  278 ;  Bray 
V.  West,  9  Sim.  429. 

2  Stacey  v.  Elph,  1  M.  &K.  195;  Ayres  v.  Weed,  16  Conn.  291;  Thorn- 
ton V.  Winston,  4  Leigh,  152;  Wardwell  v.  McDouell,  31  lU.  364;  Wil- 
liams V.  King,  43  Conn.  572  and  cases  cited. 

8  Marr  v.  Peay,  2  Murph.  85. 

4  Doe  V.  Smith,  6  B.  &  C.  112 ;  Judson  v.  Gibbons,  5  Wend.  224. 
6  Stacey  v.  Elph,  1  M.  &  K.  199  ;  In  re  Tryou,  7  Beav.  496. 
406 


CHAP.   IX.]  EFFECT   OF   A    DISCLAIMER.  [§  272. 

§  271.  A  disclaimer  should  be  by  deed  or  other  writing 
that  admits  of  no  ambiguity,  and  is  certain  evidence.^  And 
the  instrument  should  be  a  diaclaimer  and  not  a  conveyance  ; 
for  if  the  trustee  attempts  to  convey  the  estate,  he  may  be 
lield  to  have  accepted  the  trust  by  the  same  act  which  was 
intended  to  be  a  refusal  of  the  office. ^  Although  Lord  Eldon 
expressed  the  opinion,  which  seems  to  be  the  common-sense 
view,  that  if  the  intention  of  the  instrument  is  to  disclaim, 
it  ought  to  receive  that  construction,  although  it  is  in  form 
a  conveyance,^  yet  this  distinction  has  not  been  acted  on. 
A  trust  may  also  be  disclaimed  at  the  bar  of  the  court  and 
by  counsel,  or  by  answer  in  chancery.* 

§  272.  If  a  person  is  nominated  as  trustee  in  a  will,  and 
a  benefit  is  also  given  to  him  independent  of  the  office,  he 
can  claim  the  testator's  bounty,  and  yet  disclaim  the  burden 
of  the  trust,^  as  an  executor  who  is  also  a  legatee  may  re- 
nounce the  executorship  and  yet  claim  the  legacy;  but  if  the 
benefit  is  annexed  to  the  office  of  trustee  or  executor,  and  is 
not  a  gift  to  the  individual,  the  person  named  as  executor 
or  trustee  cannot  claim  the  benefit  if  he  decline  the  office.^ 

1  Stacey  v.  Elph,  1  M.  &  K.  199. 

2  Crewe  v.  Dicken,  4  Ves.  97;  Urch  v.  Walker,  3  M.  &  C.  702. 

«  Nicolson  I'.  Wordsworth,  2  Swanst.  372 ;  Att.  Gen.  v.  Doyley,  2  Eq. 
Cas.  Ab.  194;  Hussey  v.  Markham,  t.  Finch,  258;  Sharp  r.  Sharp,  2  B. 
&  A.  405;  Richardson  v.  Hulbert,  1  Anst.  65. 

*  Ladbrook  v.  Bleaden,  16  Jur.  630;  Foster  v.  Dawber,  1  Dr.  &  Sra. 
172  ;  Re  Ellison's  Trust,  2  Jur.  (n.  s.)  62  ;  Hicksoa  v.  Fitzgerald,  1  Moll. 
14  ;  Norway  v.  Norway,  2  M.  &  K.  278  ;  Sherratt  v.  Bentley,  1  R.  &  M. 
655;  Legg  v.  Mackrell,  1  Gif.  166;  Bray  v.  West,  9  Sim.  429  ;  Clemens  v. 
Clemens,  60  Barb.  366. 

6  Pollexfen  v.  Moore,  3  Atk.  272;  Andrew  v.  Trinity  Hall,  9  Ves.  525; 
Talbot  V.  Ra.hior,  3  M.  &  K.  524;  Warren  v.  Rudall,  1  John.  &  H.  1 ; 
Buel  V.  Yelverton,  L.  R.  13  Eq.  131;  In  re  Isabella  Denby,  3  De  G.,  F. 
&  J.  350  ;  Burgess  v.  Burgess,  1  Coll.  367. 

«  It  is  an  established  rule  that  bequests  to  individuals  are  considered, 
prima  facie,  to  be  given  to  them  in  that  character,  —  a  presumption  to  be 
repelled  by  the  nature  of  the  legacies  or  other  circumstances  arising  in 
the  will.  Roper  on  Leg.  780;  Slaney  v.  Watney,  L.  R.  2  Eq.  418.  It  is 
80,  even  if  the  persons  are  described  in  the  legacy  as  "  my  good  friends." 
Read  v.  Devaynes,  3  Bro.  Ch.  95.     Or  if  the  legacy  is  given  in  the  will 

407 


§  273.]  EFFECT   OF   A   DISCLAIMEK.  [CHAP.    IX. 

And  a  trustee  who  has  power,  under  certain  circumstances, 
to  appoint  a  colleague  and  successor  to  execute  the  trusts, 
may  disclaim  the  trusts,  except  the  power  of  nominating 
other  persons  to  be  trustees  in  place  of  those  originally 
appointed,  and  an  appointment  by  one  who  has  never  acted 
except  to  make  the  nomination  will  be  held  valid.  ^  (a) 

§  273.  If  a  person  appointed  trustee  effectually  disclaims, 
it  is  as  if  he  had  never  been  named  in  the  instrument.  All 
parties  are  placed  in  the  same  situation  in  respect  to  the 
trust  property  as  if  his  name  had  not  been  inserted  in  the 
deed  or  will.  2  (6)  Therefore,  if  one  of  the  several  trustees 
disclaims,  the  entire  estate  will  vest  in  the  remaining  trustee 
or  trustees;^  and  if  all  the  trustees  or  a  sole  trustee  dis- 
claim, the  estate  will  vest  in  the  heir  subject  to  the  trusts.* 

among  other  legacies.  Calvert  v.  Sebhon,  4  Beav.  222.  Or  if  it  is  given 
in  a  codicil  naming  the  person  as  an  individual  and  not  naming  his 
office.  Stackpole  v.  Howell,  13  Ves.  417  ;  per  Ch.  J.  Chapman  in  Kirk- 
land  V.  Xarramore,  105  Mass.  31.  And  see  Lewis  v.  Matthews,  L.  R.  8 
Eq.  277;  Abbott  v.  Massie,  3  Ves.  148;  Harrison  v.  Rowley,  4  Ves.  212; 
Cockerell  v.  Barber,  1  Sim.  23;  5Russ.  585;  Barnes  v.  Kirkland,  8  Gray, 
512;  Rothmaler  v.  Myers,  4  Des.  255;  Dix  v.  Read,  1  S.  &  S.  237;  Pig- 
gott  V.  Green,  6  Sim.  72;  Billingslea  v.  Moore,  14  Ga.  370;  Hall  v.  Cush- 
ing,  9  Pick.  395;  Newcomb  i'.  Williams,  9  Met.  525;  Dixon  v.  Homer,  id. 
420;  Brydges  v.  Wotton,  1  V.  &  B.  134;  Morris  v.  Kent,  2  Ed.  Ch.  175; 
In  re  Hawken's  Trust,  33  Beav.  570;  Hanbury  v.  Spooner,  5  Beav.  630; 
Griffiths  V.  Pruen,  11  Sim.  202  ;  King  v.  Woodhull,  3  Edw.  Ch.  79;  Brown 
V.  Higgs,  4  Ves.  708;  Thayer  v.  Wellington,  9  Allen,  283,  295;  Cranberry 
V.  Granberry,  1  Wash.  246. 

1  In  re  Hadley,  5  De  G.  &  Sm.  67;  9  Eng.  L.  &  Eq.  67. 

2  Townson  v.  Tickell,  3  B.  &  Al.  31 ;  Begbie  i:  Crook,  2  Bing.  N.  C. 
70;  Clemens  v.  Clemens,  60  Barb.  366;  Hawkins  v.  Kemp,  3  East,  410; 
Smith  V.  Wheeler,  1  Veutr.  128;  Legettv.  Hunter,  25  Barb.  81;  19  X.  Y. 
445;  Goss  v.  Singleton,  2  Head,  67. 

8  Ibid.;  Bonifant  v.  Greenfield,  Cro.  Eliz.  80;  Denne  v.  Judge,  11 
East,  288;  Ellis  v.  Boston,  Hartford,  &  Erie  R.  Co.,  107  Mass.  13. 

*  Stacey  v.  Elph,  1  M.  &  K.  195;   Austin  v.  Martin,  29  Beav.  523; 

(a)  So  a  power  may  subsist  after  defeated.     In  re  Cotton's  Trustees, 

the  ultimate  estates  have  vested  ab-  19  Ch.  D.  624,  628. 
solutely,  if  the  object  and  intention  (6)  Wheeler's  Appeal,  70  Conn, 

of  its  creation  would  otherwise  be  511. 
408 


CHAP.    IX.]  EFFECT    OF   A    DISCLAIMER.  [§  273. 

The  settlor  must  be  presumed  to  have  known  the  effect  of  a 
disclaimer  by  the  trustees  named  by  liim.^  It  will  be  seen 
from  this,  that  a  disclaimer  operates  retrospectively,  and 
vests  the  estate,  ab  initio,  in  those  trustees  only  who  accept 
the  trust,  and,  in  the  absence  of  an  acceptance  ijy  any  of  tlic 
trustees,  in  the  heir,^  It  follows,  that  all  the  powers  and 
authority  vested  in  the  trustees,  as  such,  which  are  inciden- 
tal or  requisite  to  the  execution  of  the  trusts,  are  vested  in 
those  trustees  only  who  acce])t  the  oflice.  They  may,  there- 
fore, grant  leases  of  the  trust  estate,^  and  sell  and  convey 
the  same,*  and  give  valid  receipts  for  the  purchase-money,^ 
and  the  disclaiming  trustee  need  not  join  in  the  deeds,  nor 
can  his  concurrence  be  required  or  enforced.  But  it  must  be 
known  whether  one  of  several  trustees  disclaims  or  accepts 
before  it  can  be  known  whether  the  acts  of  the  others  are 
valid  or  not.^  And  it  is  immaterial  that  a  disclaiming  trus- 
tee is  expressly  named  as  one  of  the  persons  by  whom  a 
power  connected  with  the  trust  is  to  be  exercised:^  a  power 
given  to  the  trustees,  or  the  survivor  of  them,  may  be  exer- 
cised by  an  acting  trustee,  although  the  disclaiming  trustee 
is  still  alive. ^  But  if  the  ])Ower  is  given  to  the  person  and 
not  to  the  office,  a  disclaimer  by  one  will  not  vest  the  power 
in  the  other  trustees,  so  as  to  enable  them  to  exercise  it. 
Powers  that  imply  a  personal  confidence  in  the  donee  nmst 
be  exercised  by  the  persons  in  whom  the  confidence  is  placed, 

Goss  V.  Singleton,  2  Head,  G7.  lu  New  York  it  rests  in  the  court  by 
statute. 

1  Rrowell  v.  Reed,  1  Hare,  435. 

2  Peppercorn  v.  Waynian,  5  De  G.  &  Sm.  230;  Stacey  v.  Elph,  1  M.  & 
K.  193;  Dunning  r.  Ocean  Nat.  Bk.,  0  Lans.  29G. 

8  Small  v.  Marwood,  9  B.  &  Cr.  307  ;  Bayly  i^.  Cumininc^,  10  Ir.  Eq. 
410. 

*  Cooke  V.  Crawford,  13  Sim.  91;  Adams  v.  Taunton,  5  Madd.  435; 
Crewe  v.  Dicken,  4  Ves.  97;  Nicolson  c.  Wordsworth,  2  Swanst.  378. 

6  Hawkins  v.  Kemp,  3  East,  410;  Smith  i:  Wheeler,  1  Ventr.  128;  2 
Yen.  &  Pur.  850 ;  Vandever's  App.,  8  Watts  &  S.  405. 

6  Moir  I'.  Brown,  14  Barb.  39. 

''  Crewe  r.  Dicken,  4  Ves.  100;  Adams  r.  Taunton,  5  Madd.  43.5. 

8  Sharp  V.  Sharp,  2  B.  &  Cr.  405 ;  Peppercoru  v.  Wayman,  5  De  G.  & 
Sm.  230. 

409 


§  274]  EFFECT   OF   A   DISCLAIMER.  [CHAP.    IX. 

and  to  whom  the  power  is  given.  ^  Such  powers,  therefore, 
will  not  vest  by  the  disclaimer  of  one  in  his  cotrustees,  but 
will  be  absolutely  gonc.^ 

§  274.  If  a  trustee  once  accepts  the  office,  he  cannot  by 
his  sole  action  be  discharged  from  its  duties.  Having  once 
entered  upon  the  management  of  the  trust,  he  must  continue 
to  perform  its  duties  until  he  is  discharged  in  one  of  three 
ways:  first,  he  may  be  removed  and  discharged,  and  a  new 
trustee  substituted  in  his  place,  by  proceedings  before  a  court 
having  jurisdiction  over  the  trust;  second,  he  may  be  dis- 
charged, and  a  new  trustee  appointed,  by  the  agreement  and 
concurrence  of  all  the  parties  interested  in  the  trust ;  (a)  and, 
third,  he  may  be  discharged,  and  a  new  trustee  appointed,  in 
the  manner  pointed  out  in  the  instrument  creating  the  trust, 
if  it  makes  any  provisions  upon  that  subject.^  (6)  Mere  aban- 
donment of  the  trust  will  not  vest  the  trust  property  in  the 
hands  of  his  cotrustee,  nor  relieve  a  trustee  from  liability.* 
If  a  trustee  conveys  away  the  trust  estate  to  another,  even 
bis  cotrustee,  and  appoints  another  to  execute  the  trust,  the 
conveyance  may  pass  the  naked  legal  title,  but  it  will  have 
no  effect  in  relieving  the  original  trustee  from  responsibility, 
if  the  transaction  is  not  sanctioned  by  the  decree  of  the  court, 
or  by  the  consent  of  all  parties  interested;  and  it  will  trans- 

1  Cole  V.  Wade,  16  Ves.  44;  Newman  v.  Warner,  1  Sim.  (n.  s.)  457; 
Eaton  V.  Smith.  2  Beav.  236;  Att.  Gen.  v.  Doyley,  2  Eq.  Cas.  Ab.  194; 
Walsh  V.  Gladstone,  14  Sim.  2;  Wilson  r.  Pennock,  27  Pa.  St.  238. 

^  Eaton  V.  Smith,  2  Beav.  236;  Lancashire  v.  Lancashire,  2  Phill.  657; 
Robson  V.  Flight,  33  Beav.  268. 

3  Craig  V.  Craig,  3  Barb.  Ch.  76;  Drane  v.  Gunter,  19  Ala.  731; 
Thatcher  v.  Candee,  3  Keyes  (N.  Y.),  157;  Shepherd  v.  McEvers,  4 
Johns.  Ch.  186;  Cruger  tv  Halliday.  11  Paige,  319;  Ridgeley  r.  Johnson, 
11  Barb.  527  ;  Webster  v.  Vandeventer,  6  Gray,  428;  Pearce  r.  Pearce,  22 
Beav.  248;  Sugden  v.  Crossland,  3  Sm.  &  Gif.  192;  Jones  v.  Stockett,  2 
Bland,  409 ;  Perkins  v.  McGavock,  3  Hay.  265. 

*  Webster  v.  Vandeventer.  6  Gray,  428;  Cruger  v.  Halliday,  11  Paige, 
314  ;  Thatcher  i'.  Candee,  3  Keyes,  157. 

(a)  This  applies  to  a  trustee  for         (b)  Stearns  v.  Fraleigh,  39  Fla. 
creditors.  Jenkins  v.  Hammerschlag,    603,610. 
06  N.  Y.  S.  534. 
410 


CHAP.   IX.]  REMOVAL   OF   A   TRUSTEE.  [§  275. 

for  no  authority  to  the  pcnson  thus  appointed,  except  to  make 
him  a  trustee  de  sou  tort,  if  he  attempts  to  interfere  with  the 
trust  estate.^  (a) 

§  275.  The  cestui  que  trust,  and  all  other  persons,  al- 
though contingently  interested  in  the  remainder  or  reversion 
of  trust  property,^  are  entitled  to  have  the  custody  and  the 
administration  of  it  confided  to  proper  persons,  and  to  a 
proper  number  of  persons.  Thus  if  a  trustee  originally  ap- 
pointed by  will  die  in  the  testator's  lifetime,  a  new  trustee 
may  be  appointed  by  the  court  to  take  the  trust  property;  or 
if  the  original  number  of  trustees  is  reduced  by  death,  the 
cestui  que  trust  may  call  upon  the  court  to  appoint  new  trus- 
tees in  place  of  those  deceased. ^  So  if  a  trustee  disclaims, 
or  refuses  to  act  after  having  once  accepted,^  or  becomes  so 
situated  that  he  cannot  effectually  execute  the  office,  as  by 
becoming   a   permanent   resident    abroad,^   or   by    abscond- 

^  Pearce  v.  Pearce,  22  Beav.  248 ;  Sugden  v.  Crossland,  3  Sm.  &  Gif. 
192;  Braybiooke  v.  Inskip,  8  Ves.  417;  Chalmers  v.  Bradley,  1  J.  &  W. 
68;  Williams  o.  Parry.  4  Russ.  272;  Adams  v.  Payuter,  1  Coll.  532; 
Cruger  v.  Ilalliday,  11  Paige,  314;  Ardill  v.  Savage,  I  Jr.  Eq.  79. 

2  Fiiilay  v.  Howard,  2  Dr.  &  W.  490;  Cooper  v.  Day,  1  Rich.  Eq.  26; 
In  re  Sheppard's  Trusts,  4  De  G.,  F.  &  J.  423 ;  Rennie  v.  Ritchie,  12  CI. 
&  Fin.  204. 

*  Buchanan  i'.  Hamilton,  5  Ves.  722;  Ilibbard  v.  Lamb,  Anib.  309; 
Webb  V.  Shaftesbury,  7  Ves.  487;  Millard  i^.  Eyre,  2  Ves.  Jr.  94;  De 
Peyster  v.  Clendiniiig,  8  Paige,  290;  Dixon  v.  Homer,  12  Cu.sh.  41;  Mass. 
Gen.  IIos.  V.  Amory,  12  Pick.  445;  Greene  v.  Borland,  4  Met.  339. 

*  Wood  V.  Stane,  S  Price,  613;  Moggeridge  v.  Grey,  Nels.  42;  Anon. 
4  Tr.  Eq.  700;  Travell  v.  Dan  vers,  Finch,  380;  Irvine  v.  Dunham,  111 
U.  S.  327. 

6  O'Reilly  v.  Alderson,  8  Hare.  101 ;  Re  Ledwick,  6  Jr.  Eq.  561  :  Com., 
&c.  V.  Archbold,  11  Ir.  Eq.  187  ;  Lill  c.  Neafie,  31  111.  101 ;  In  re  Reynolds' 

(a)  See   1    Ames   on   Trusts    (2d  empower    the    beneficiaries   to    rp- 

ed.),  316,  345.     The  action  of  tho  move  a  trustee  for  adequate  cause, 

court     in     appointing     a     receiver  and  appoint  a  new  one;  but  a  court 

may  amount  to  the  removal   of   a  of  equity  may  review  the  exercise  of 

trustee  and  the  appointment  of   a  such  power.     May  v.  May,  107  U.  S. 

new  one.      Fatjo    r.    Swasey,    111  310;  5  App.  D.  C.  552. 
Cal.    628.      A    will    may   properly 

411 


§  275.]  FOR   WHAT   CAUSES   MAY    BE   KEMOVED.       [CHAP.    IX. 

ing;^  or  ii  a  female  trustee  marry  ;2  or  if  the  trustees  of  a 
church  or  chapel  embrace  opinions  contrary  to  the  founder's  in- 
tentions ;  ^  or  if  the  trustee  becomes  bankrupt,*  or  misconducts 
himself,^  or  deals  with  the  trust  fund  for  his  own  personal 
profit  and  advancement,^  or  commits  a  breach  of  trust,''  or 
refuses  to  apply  and  pay  over  the  income  as  directed,^  or  if 

Settlement,  L.  R.  7  Ch.  224  ;  Maxwell  v.  Finnie,  6  Cold.  434 ;  Curtis  v. 
Smith,  60  Barb.  9;  Meunard  v.  Wilford,  1  Sm.  &  Gif.  426  ;  Re  Stewart, 
8  W.  R.  297;  Re  Harrison's  Trusts,  22  L.  J.  Ch.  69;  Dorsey  v.  Thomp- 
son, 37  Md.  25;  Ketchum  v.  Mobile  &  Ohio  R.  R.,  2  Woods,  532.  The 
voluntary  removal  to,  and  becoming  a  resident  of,  a  foreign  country  by 
a  trustee  under  a  mortgage  by  a  railroad  company,  incapacitates  him  and 
vacates  the  office;  and  if,  after  such  removal,  he  attempts  to  prosecute 
suit  in  federal  court  the  state  court  will  enjoin  him.  Farmers'  Loan 
and  Trust  Co.  v.  Hughes,  11  Hun  (N.  Y.),  130.  And  where  the  cestui 
que  trust  was  prohibited  by  law  from  coming  into  the  State,  the  court,  on 
the  trustee's  petition,  discharged  him,  and  appointed  one  living  in  the 
same  State  with  the  cestui  que  trust.     Ex  parte  Tunno,  1  Bailey,  Ch.  395. 

1  Millard  v.  Eyre,  2  Ves.  Jr.  94;  Gale's  Feti.  R.  M.  Charlt.  109;  Re 
Mais,  16  Jur.  60S. 

2  Lake  v.  De  Lambert,  4  Ves.  592  ;  Re  Kaye,  L.  R.  1  Ch.  387.  By 
chap.  409  of  the  Acts  of  1869,  a  married  woman  in  Massachusetts  may  be 
appointed  executrix,  administratrix,  guardian,  or  trustee,  with  the  written 
assent  of  her  husband;  and  the  marriage  of  a  single  woman  who  holds 
such  trusts  shall  not  extinguish  her  authority,  but  her  sureties  on  petition 
may  be  discharged,  and  she  may  be  required  to  give  new  ones. 

8  Att.  Gen.  v.  Pearson,  7  Sim.  309;  Att.  Gen.  v.  Shore,  id.  317;  Rose 
V.  Crockett,  14  La.  An.  811.  If  individuals  pay  their  own  money,  and  take 
a  deed  to  themselves  in  trust  for  a  parish,  the  courts  will  not  appoint  a 
trustee  to  fill  a  vacancy;  but  if  the  parish  paid  the  money,  the  court  will 
appoint.     Draper  v.  Minor,  36  Mo.  200. 

4  Baiubrigge  v.  Blair,  1  Beav.  495;  In  re  Roche,  1  Con.  &  Laws.  306; 
Com.,  &c.  V.  Archbold,  11  Ir.  Eq.  187;  Harris  v.  Harris,  29  Beav.  107; 
Re  Bridgman,  1  Dr.  &  Sm.  164. 

5  Mayor  of  Coventry  v.  Att.  Gen.,  7  Bro.  P.  C.  235 :  Buckeridge  v. 
Glasse,  1  Cr.  &  Ph.  122;  Thompson  v.  Thompson,  2  B.  Mon.  161;  Deen 
V.  Cozzens,  7  Rob.  178. 

6  Ex  parte  Phelps,  9  ]\Iod.  3.57;  Clemens  v.  Caldwell,  7  B.  Mon.  171  ; 
Deen  v.  Cozzens,  7  Rob.  178 ;  Kraft  v.  Lohman,  79  Ala.  .323. 

'  Thompson  v.  Thompson,  2  B.  Mon.  161;  Mayor  of  Coventry  v.  Att. 
Gen.,  7  Bro.  P.  C.  235  ;  Att.  Gen.  r.  Drummond.  1  Dr.  &  W.  353  ;  3  Dr. 
&  W.  162 ;  Att.  Gen.  v.  Shore,  7  Sim.  309,  n. ;  Ex  parte  Greenhouse,  1 
Madd.  92. 

8  Ex  parte  Potts,  1  Ash.  340. 
412 


CHAP.    IX.]       FOR   WHAT    CAUSES    MAY    BE   REMOVED.  [§  275. 

he  fails  to  invest  as  directed,'  or  permits  a  cotrustee  to 
commit  u  breach  of  trust,"  or  if  he  loans  the  trust  funds  on 
personal  security,  altliouuh  the  cestui  que  truat  approves  of 
it,^  or  refuses  to  obey  an  order  of  court,*  or  if  trustees  of  a 
mortgage  for  the  security  of  bond-bolders  of  a  railivjad  or 
other  corporation  refuse  to  foreclose  or  take  other  steps ;^ 
or  if  a  trustee  make  a  grossly  unreasonable  claim  uj)on  the 
trust  property  adverse  to  the  cestui  que  trust ;^  or  if  a  hus- 
band, trustee  for  his  wife,  abandons  and  deserts  her  or  treats 
her  with  cruelty;'^  or  if  a  municipal  corporati<jn,  liolding 
property  upon  special  trusts,  is  abolished;^  or  if  a  trustee 
becomes  an  habitual  drunkard;^  or  a  lunatic ;^*^  or  if  a  hos- 
tile feeling  exists  between  a  discretionary  trustee  and  the 
cestui,^'^  or  the  trustee  is  antagonized  by  litigation, '^  or  the 
trustee  acts  adversely  to  the  interests  of  the  eestui,^^  or  if  the 
trustee,  appointed  on  an  ex  parte  application  of  one  of  the 
cestuis,  is  his  paid  servant,^*  or  if  there  is  any  other  good 
cause, ^'^  as  if  the  trust  fund  is  in  danger  of  being  lost  for  want 

1  Clemens  v.  Caldwell,  7  B.  IMon.  171 ;  Deen  v.  Cozzens,  7  Rob.  N.  Y. 
178  ;  Cavender  v.  Cavender,  114  U.  S.  464. 
^  E.r  parte  Reynolds,  5  Ves.  707. 
8  Johnson  v.  Simpson,  9  Barr,  416. 
4  Ehlen  v.  f:hlen,  03  :\rd.  207. 
6  ]Matter  of  Merchants'  Bank,  2  Barb.  S.  C.  446. 
«  Cooper  V.  Day,  1  Rich.  Ch.  26. 

'  Boaz  V.  Boaz,  36  Ala.  334;  Fisk  v.  Stubbs,  30  Ala.  3.55;  Smith  v. 
Oliver,  31  Ala.  130;  Abernathy  v.  Aberiiatliy,  8  Fla.  213.  But  if  the 
wife  deserts  the  husband  without  cause,  thouixh  the  husband  may  be  at 
some  fault,  it  is  no  cause  for  removing  him  as  her  trustee.  Abernathy  v. 
Abernathy,  8  Fla.  213. 

8  INIontpelier  r.  Ea.st  Montpelier.  29  Vt.  12. 

«  Everett  v.  Prythergch,  12  Sim.  367  ;  Bayles  v.  Staats,  1  Ilalst.  Ch. 
513. 

10  Matter  of  Wadsworth,  2  Barb.   Ch.  387:    He  Fowler,  2  Russ.  440; 
Anon.,  5  Sim.  322  ;  In  re  Holland.  16  Ch.  D.  672 ;  In  re  Xash,  10  Ch.  D. 
503  ;  In  re  Watson,  19  Ch.  D.  384;  In  re  IMartyn,  26  Ch.  D.  745. 
"  Wilson  V.  Wilson,  1 15  Mass.  490,  494. 
"  David.son  i:  Moore,  14  S.  C.  251. 
"  Dickerson  r.  Smith,  17  S.  C.  2S9. 
"  Mayfield  r.  Donovan,  17  I\Io.  App.  684. 

"  Piper's  App.,  20  Penn.  St.  67 ;  Fraukliu  v.  Hayes,  2  Swanst.  521. 

413 


§  275.]  FOR   WHAT   CAUSES   MAY   BE   REMOVED.       [CIIAP.    IX. 


of  care  and  attention  by  the  trustee,^  or  if  in  any  way  the 
trustee  has  become  incapable  of  performing  the  duties  of  the 
trust,^  or  his  acts  or  omissions  show  a  want  of  reasonable 
fidelity  to  the  trust,^  —  in  all  these  and  similar  cases  the  old 
trustees  may  be  removed,  and  new  ones  substituted  in  their 
room,  (a)     The  matter  rests  in  the  sound  discretion  of  the 

1  Jones  V.  Dougherty,  10  Ga.  273;  Harper  v.  Straws,  14  B.  Mon.  57; 
riolcorab  V.  Coryell,  1  Beas.  289;  Lasley  v.  Lasley,  1  Duv.  117  ;  and  see 
Commissioners  v.  Archibald,  11  Ir.  Eq.  195,  where  L.  Ch.  Brady  ably 
discusses  the  removal  of  trustees.  In  re  Bernstein,  3  Redf.  (N.  Y.)  20. 
Or  if  a  trustee  identifies  himself  with  one  of  two  contending  parties  in 
relation  to  the  trust  fund.  Scott  v.  Rand  et  al.,  118  Mass.  215.  Or  is  so 
hostile  to  his  cotrustees  as  to  endanger  the  execution  of  the  trust.  Devas- 
mer  c.  Dunham,  22  Ilun  (N.  Y.),  87.  Or  is  guilty  of  gross  misconduct  in 
execution  of  a  discretionary  trust.  Babbit  v.  Babbit,  26  N.  J.  Eq.  44  ; 
Sparhawk  )'.  Sparhawk,  114  Mass.  356.     ^  Austin  v.  Austin,  18  Neb.  309. 

3  Cavender  y.  Cavender,  114  U.  S.  464. 


(a)  See  Jones  v.  Jones,  30  N.  Y. 
S.  177 ;  EUas  v.  Schweyer,  40  id.  906; 
In  re  Hoysradt,  45  id.  841.  Mis- 
conduct justifying  a  trustee's  re- 
moval, also  includes,  e.  g.,  wasting 
of  the  estate  in  unnecessary  litiga- 
tion :  Re  McGillivray,  138  N.  Y.  308 ; 
unreasonably  or  wilfully  withhold- 
ing income  from  a  beneficiary :  Ibid., 
Wilcox  V.  Quinby,  16  N.  Y.  S.  699; 
refusing  to  convey,  as  directed  by  a 
valid  decree  of  court :  Harrison  v. 
Union  Trust  Co.,  144  N.  Y.  326; 
threatening  to  make  injurious  dis- 
closures, if  proceedings  are  taken 
against  himself.  Grant  v.  Llaclaren, 
23  Can.  Sup.  310. 

"  The  power  of  a  court  of  equity 
to  remove  a  trustee,  and  to  substi- 
tute another  in  his  place,  is  inciden- 
tal to  its  paramount  duty  to  see  that 
trusts  are  properly  executed ;  and 
may  properly  be  executed  whenever 
such  a  state  of  mutual  ill-feeling, 
growing  out  of  his  behavior,  exists 
between  the  trustees,  or  between  the 
414 


trustee  and  the  beneficiaries,  that 
his  continuance  in  office  would  be 
detrimental  to  the  execution  of  the 
trust,  even  if  for  no  other  reason 
than  that  human  infirmity  would 
prevent  the  cotrustee  or  the  benefi- 
ciaries from  working  in  harmony 
with  him,  and  although  charges  of 
misconduct  against  him  are  either 
not  made  out,  or  are  grossly  exag- 
gerated." Mayy.  May,  167  U.  8.310, 
320 ;  Wilson  v.  Wilson,  145  Mass. 
490,  493  ;  Marsden's  Estate,  166 
Penn.  St.  213  ;  Gartside  r.  Gartside, 
113  Mo.  348;  Letterstedt  v.  Broers, 
9  A.  C.  371,  386. 

If  circumstances  give  rise  to  con- 
flict of  interests  between  the  parts 
of  trust  property  held  on  distinct 
trusts,  the  English  courts,  under  the 
Trustee  Act  of  1850,  §  32,  would 
not  necessarily  deem  it  expedient 
to  remove  the  trustees,  but  might 
appoint  separate  trustees.  In  re 
Aston's  Trusts,  25  L.  R.  Ir.  96. 


CHAP.    IX.]       FOR    WHAT    CAUSES    .MAY    liE    KK.MOVED.  [§  276. 

court.^  And  in  a  suit  for  tlio  purpose,  it  will  not  Itc  imper- 
tinent nor  scandalous  to  charj^e  the  trustee  with  misconduct, 
or  to  impute  to  him  a  corrupt  or  improper  motive,  or  to  allege 
that  his  behavior  is  vindictive  towards  the  cestui  que  trust ; 
but  it  will  be  impertinent,  and  may  bo  scandalous,  to  charge 
general  malice  or  general  personal  hostility. ^  If  the  court 
have  jurisdiction  of  the  subject-matter,  mere  irregularity  in 
the  proceedings  or  in  the  appointment  will  not  make  it  void 
in  a  collateral  proceeding,  nor  can  the  regularity  of  the 
proceedings  or  of  the  appointment  be  inquired  into  in  a  col- 
lateral suit;  such  appointment  must  stand  until  it  is  reversed 
by  a  proceeding  for  the  purpose  in  the  same  case.^  In  case 
of  a  trust  for  creditors,  the  court  will  not  at  the  instance  of 
some  of  them  remove  the  assignee,  unless  he  is  in  default, 
or  is  shown  to  be  unfit  for  his  office.*  Equity  will  not  exer- 
cise its  power  to  take  charge  of  and  administer  a  trust  when 
it  is  being  properly  administered  by  the  trustee.^ 

§  276.  It  may  be  stated  generally,  that  if  the  conduct  or 
circumstances  of  the  trustees  are  such  as  to  render  it  very 
inconvenient,  improper,  or  inexpedient  for  them  to  continue 
in  the  trust,  the  court  will  exercise  its  discretion  and  relieve 
them,  and  appoint  others  in  their  place;  as  where  the  trus- 
tees were  desirous  of  being  discharged,^  or  were  incapable 
through  age  and  infirmity  of  acting,^  or  so  disagreed  among 
themselves  that  they  could  not  act,^  or  where  cotrustees  re- 

'  Ibid.,  citing  many  cases. 

2  Portsmouth  v.  Fellows,  5  Madd.  450 ;  Parsons  r.  Jones,  26  Ga.  044. 

8  Ikuld  V.  Ililer,  3  Dutch.  43;  People  v.  Norton.  5  Seldon,  IT');  Paules 
V.  Dilley,  9  Gill,  222  ;  Curtis  r.  Smith,  60  Rarh.  9  ;  Howard  v.  Waters, 
19  How.  529;  Hodc^don  v.  Shannon,  44  N.  H.  ;j72. 

*  Jones  V.  McPliiilips,  77  Ala.  314. 

6  ]Meyers  r.  Trustees  of  Schools,  21  HI.  App.  223. 

6  Bogle  V.  Bogle,  3  Allen,  loS;  Howard  v.  Rhodes,  1  Keen.  .581;  Cov- 
entry V.  Coventry,  id.  758 ;  Greenwood  v.  Wakeford,  1  lieav.  576 ;  Hamil- 
ton V.  Frye.  2  INIoll.  458. 

'  Gardiner  v.  Downes,  22  Beav.  395;  Bennett  v.  Honywood,  Amb. 
710. 

8  Bagot  V.  Bagot,  32  Beav.  509;  Uvedale  v.  Patrick,  2  Ch.  Cas.  20. 

415 


§  276.]  FOR   WHAT   CAUSES   MAY    BE    REMOVED.       [CIIAP.    IX. 

fuse  to  act  with  one  of  their  number, ^  or  where  the  trustees 
a])pointed  were  municipal  officers  for  the  time  being  and  are 
changed  yearly,^  or  where  a  corporation  appointed  trustee 
had  become  subject  to  a  foreign  power, ^  —  in  these  and  the 
like  cases  the  courts  interposed  and  appointed  other  trustees. 
But  if  there  is  a  controversy,  the  court  will  exercise  a  sound 
discretion.  Mere  disagreements  between  the  trustee  and 
cestui  que  trust  will  not  justify  a  removal;*  nor  the  fact  that 
the  trustee  forbids  social  intercourse  between  his  family  and 
the  beneficiaries,^  and  if  a  trustee  fails  in  the  discharge  of  his 
duties  from  an  honest  mistake,  or  mere  misunderstanding  of 
them,  or  from  a  mis  judgment,  it  is  no  ground  for  removal,^ 
and  if  a  trustee  in  good  faith  refuses  to  exercise  a  purely 
discretionary  power  in  favor  of  the  estate,  as  to  vary  the 
securities,  he  will  not  be  removed;'^  nor  will  he  be  removed 
for  a  mere  constructive  fraud,  as  for  buying  the  trust  prop- 
erty at  his  own  sale  ;^  and  where  a  trust  was  to  take  effect  in 
the  future  upon  the  happening  of  a  certain  event,  and  in  the 
meantime  it  was  to  remain  passive,  the  court  refused  to  in- 
terfere, and  remove  the  trustee  for  an  alleged  misfeasance.^ 
In  no  case  ought  the  trustee  to  be  removed  where  there  is  no 
danger  of  a  breach  of  trust,  and  some  of  the  beneficiaries  are 
satisfied  with  the  management.^''  Nor  will  a  trustee  be  re- 
moved for  every  violation  of  duty,  or  even  breach  of  the  trust, 

1  Uvedale  v.  Patrick,  2  Ch.  Cas.  20. 

2  Ex  parte  Blackburne,  IJ.  &  W.  297 ;  Webb  v.  Neal,  5  Allen,  575. 
8  Att.  Gen.  v.  Loudon,  3  Bro.  Ch.  171. 

4  Clemens  v.  Caldwell,  7  B.  Mon.  171  ;  Gibbes  v.  Smith,  2  Rich.  Eq. 
131 ;  Foster  v.  Davies,  4  De  G.,  F.  &  J.  133.  Unless  the  duties  of  the 
trustee  require  an  intimate  personal  intercourse,  or  the  trustee  has  dis- 
cretionary power  over  the  cestui  que  trust.  McPherson  v.  Cox,  96  W.  S. 
404. 

6  Nickels  v.  Philips,  18  Fla.  732. 

6  In  the  TNIatter  of  Durfee,  4  R.  I.  401  ;  Att.  Gen.  v.  Coopers'  Co.,  19 
Ves.  192 ;  Att.  Gen.  v.  Caius  College,  2  Keen,  150  ;  Lathrop  v.  Smalley, 
23  N.  J.  Eq.  192. 

'  Lee  V.  Young,  2  Y.  &  C.  Ch.  532. 

•  Webb  V.  Dietrich,  7  W.  &  S.  401. 

»  Sloo  V.  Law,  1  Blatch.  C.  C.  512. 
"  Berry  v.  Williamson,  11  B.  Mon.  245. 
416 


CHAP.  IX.]   WHEN  A  TRUSTEE  MAY  BE  DISCHARGED.    [§  277. 

if  the  fund  is  in  no  dan^'-cr  of  being  lost.  ^  (a)  The  ]Hjwer  of 
removal  of  trustees  appcnnted  by  deed  or  will  ought  to  he 
cxcfcised  sparingly  by  the  courts.  There  must  be  a  clear 
necessity  for  interference  to  save  the  trust  property.  Mere 
error,  or  even  breach  of  trust,  may  not  be  suflicient;  there 
must  be  such  misconduct  as  to  show  want  of  capacity  or  of 
fidelity,  putting  the  trust  in  jeopardy. ^ 

§  276  a.  A  trust  will  not  be  allowed  to  fail  for  want  of  a 
trustee;  and  if  the  nominee  dies  before  qualifying  or  after- 
ward, the  court  will  appoint  a  trustee.^  So  if  no  trustee  is 
appointed  by  the  grantor,  or  his  appointment  is  void  for 
uncertainty.^  But  if  the  trustee  of  a  ])0wer  that  is  jjurely 
personal  and  discretionary  refuses  to  qualify,  the  trust  can- 
not be  executed.^ 

§  277.  In  removing  and  substituting  trustees,  the  court 
does  not  act  arbitrarily,  but  upon  certain  general  principles, 
and  after  a  full  consideration  of  the  case,  {h)     Irregularities 

»  Lathrop  v.  Smalley,  23  N.  J.  Eq.  192 ;  Corlies  v.  Corlies,  id. 
2  Massy  v.  Stout,  4  Del.  Ch.  27-1. 

8  Scbouler,  Petitioner,  134  Mass.  426;  Mendenhall  v.  Mower,  16  S.  C. 
304. 

*  State  V.  Griffith,  2  Del.  Ch.  392. 
6  Jones  V.  Fulghum,  3  Tenn.  Ch.  193. 

(fl)  Trustees,    being     personally  Haven,   60  Conn.   314 ;   Tarrant  v. 

liable    for    their     negligence,    uill  Backus,  03  Conn.  277 ;  Kane's  A\y- 

not  necessarily  be  removed  for  this  peal,   177   Penn.    St.    638;    Anson, 

cause  only,  when  the  trust  property  Petitioner,  85  Maine,  79  ;  "Wildey  r. 

is  not  endangered.     2   Story,   Eq.  Robinson,  32  N.  Y.  S.  lOlS;  In  re 

Jur.   §   12sr);  Waterman  v.   Alden,  Carpenter,  131  N.  Y.  86;  Fisher  r. 

144  111.  90;    Taylor  v.  IVIahoney,  94  Dickenson,   84  Va.   318;  Woodruff 

Va.  508;    In  re  O'Hara,   62   Ilun,  v.    Woodruff,    44    N.    J.    Eq.    349 

531;    Dow  r.  Dow,  18  N.  Y.  S.  222  ;  Gregg    r.    Gabbert,    62   Ark.    602 

Lathrop  v.   Baubie,    106  Mo.  470;  Brandon    r.    Carter,    119  JIo.  572 

Williams  v.  Nichol,  47  Ark.  254.  Hitch  v.  Stoncbraker,  125  Mo.  128 

(h)  This  may  be  done  upon  the  White    v.    McKeon,    92    Ga.    343 

ex  parte  application  of  the  benefi-  Lowe   i\    Suggs,   87  Ga.   577 ;  City 

ciary.     Sullivan  r.  Latimer,  35  S.  C.  Council    v.    Walton,    77    Ga.    517' 

422.     See  generally,  Dailey  v.  New  Tuttle  r.  Merchants'  Nat.  Bank,  19 

VOL.  I.  — 27  417         ' 


§  277.]  PRINCIPLES    ON   WHICH    COURTS    ACT.  CIIAP.    IX. 

in  the  proceedings  of  appointment  not  affecting  the  jurisdic- 
tion of  the  court  will  not  avail  in  collateral  suits.i(«)  But 
an  appointment  where  there  is  no  vacancy,  the  former  trustee 
not  having  relinquished  the  trust  nor  been  deprived  of  it  for 
abuse  or  mismanagement,  is  a  nullity. ^  Where  the  trustees 
are  required  to  give  security,  it  will  order  such  notice  and  to 
such  persons  as  it  sees  fit.^  It  always  has  regard  to  the 
wishes  of  the  author  of  the  trust,  to  be  gathered  from  the 
instrument  of  trust;  if  he  has  expressed  a  disapprobation  of 
an  individual,  the  court  would  refrain  from  appointing  him; 
and  so  the  court  will  not  appoint  a  new  trustee  with  a  view 
to  the  interest  of  some  of  the  cestuis  que  trust,  for  the  trustee 
ought  to  hold  an  even  hand  between  all  parties,  and  not 
favor  a  particular  one.  Further,  the  court  has  regard  to  the 
nature  of  the  trust,  and  to  those  instrumentalities  by  which 
it  can  best  be  carried  into  execution.*     Accordingly,  courts 

1  McKim  r.  Doane,  137  Mass,  195. 

2  Augusta  V.  Walton,  77  Ga.  525,  526. 

3  Matter  of  Robinson,  37  N.  Y.  271. 
*  In  re  Tempest,  L.  R.  1  Ch.  487. 

Mont.  11;  Dyer  v.  Leach,  91  Cal.  stituted  trustee  usually  has  the  same 

191  ;    State  v.  Hunt,  46  Mo.  App.  rights  and  duties  as,  and  is  subject 

610.  to  the  orders  and  conditions  already 

(a)    See   Kenaday  v.    Edwards,  imposed  on,  the  first  trustee.    Ibid., 

134  U.  S.  117;  Lahey  v.  Kortright,  Wemyss  v.  White,  159  Mass.  484; 

132  N.  Y.  450;   Royce  v.   Adams,  In  re  Appley,  33  N.  Y.  S.  724  ;  Os- 

123  N.  Y.  402;  Mulry  v.  Mulry,  35  borne   r.  Gordon,   86  Wis.   92.     A 

N.  Y.  S.  618;  Correll  v.  Lauterbach,  new  trustee  will  not  be  appointed 

42  id.  143;  Robinson  v.  Schmitt,  45  simply  to  distribute  a  trust  fund  in 

id.  253  ;  Dexter  r.  Cotting,  149  Mass.  the  possession  of  his  predecessor's 

92;  In  re  Stamford,    [1896]  1  Ch.  executor  or  administrator,  but  such 

288  ;  Edgerly  v.  Barker  (N.  H.),  32  representative   will   be    ordered  to 

Atl.  766  ;  Linton  v.   Shaw,  95  Ga.  make  the  payment.  Boyer  i'.  Decker, 

683  ;    Simmons   v.    McKinlock,   98  40  N.  Y.  S.  469;  Tyler  r.  Mayre,  95 

Ga.  738;  Pettus  i'.  Atlantic  S.  Ass'n,  Cal.  160;  Anderson  v.  Northrop,  30 

94  Va.  477;  Chapman  v.  Kimball,  Fla.  012.     In  New  York,  the  execu- 

83  ]\Iaine,  389  ;  Avery  v.  Avery,  90  tion  of  a  decree  removing  a  testa- 

Ky.    613 ;    Re   Petranek,  79   Iowa,  mentary  trustee  or  executor  is  not 

410;    Wall    St.    Meth.    Church   v.  stayed  by   an   appeal.      Code   Civ. 

Johnson,  140  lud.  445 ;  Mazelin  v.  Proc,  §  2583 ;    Stout  v.    Betts,  74 

Kouyer,  8  Ind.    App.  27.     A  sub-  Ilun,  206.     A  trustee's  application 
418 


CHAP.   TX]  BANKKUriCY   OF   TRUSTEES.  [§  277. 

will  not  substitute  trustees  upon  the  mere  caprice  of  the  cestui 
que  trust,  and  witliout  a  reasonable  cause/  and  although  the 
instrument  of  trust  or  a  statute  gives  the  cestui  que  trust  full 
power  to  remove  and  appoint  other  trustees,  yet  good  cause 
nuist  be  shown  or  the  court  cannot  l>e  put  in  motion,"  nor 
will  they  apfjoint  a  trustee  out  of  the  jurisdiction  without 
security.3  There  is  no  absolute  rule  of  law  that  prevents  a 
cestui  que  trust  from  being  a  trustee  for  himself  and  others, 
and  the  court  is  sometimes  obliged  to  appoint  him;  but  the 
arrangement  is  irregular  and  sometimes  disastrous,  and  the 
court  will  not  sanction  it  if  it  can  be  avoided.*  (a)  So  a  hus- 
band may  be  trustee  for  a  wife,  and  a  wife  for  a  husband, °  {h) 

1  O'Keeflfe  v.  Calthorpe,  1  Atk.  IS  ;  Pepper  v.  Tuckey,  2  Jon.  &  La.  95; 
Ward  IV  Dorch,  G9  N.  C.  279;  Bouldin  v.  Alexander,  15  Wall.  132. 

2  Stevenson's  Appeal,  59  Penn.  St.  101;  68  id.  101. 

8  Ex  parte  Roberts,  2  Strob.  86 ;  Gibson's  Case,  1  Bland,  138. 

*  Passingham  v.  Sherborne,  9  Beav.  424 ;  Reid  v.  Reid,  30  Beav.  388; 
Ex  parte  Glutton,  17  Jur.  988;  Ex  parte  Conybeare's  Settlement,  1  W.  R. 
458  ;  Wilding  v.  Bolder,  21  Beav.  222  ;  Craig  v.  Hone,  2  Edw.  Ch.  554. 

^  Tweedy  v.  Urquhart,  30  Ga.  446  ;  Livingston  v.  Livingston,  2  Johns. 
Ch.  541 ;  Bennett  v.  Davis,  2  P.  Wins.  310 ;  Shirley  v.  Shirley,  9  Paige, 
363  ;  Jamison  v.  Brady,  6  S.  &  R.  467 ;  Boykin  v.  Cipples,  2  Hill,  Ch.  200; 

to  resign  and  to  have  a  new  trustee  ficiary.    Griswold  v.  Sackett  (R.  I.), 

appointed   is  there   a  special   pro-  42  Atl.  808. 

ceeding.     In  re  Ilolden,  126  X.  Y.  (a)  Story  v.  Palmer,  46  N.  J.  Eq. 

589.  1;  Curran  v.  Green,  18  R.  I.  329; 

"Independently  of  statute,  a  People  r.  Donohoe,  70  Hun,  317. 
court  of  equity  cannot  appoint  a  (J))  See  Gaskill  v.  Green,  152 
person  to  execute  a  transfer  of  the  Mass.  526;  Grundy  v.  Drye  (Ky.), 
property  of  another."  Field,  J.,  in  48  S.  W.  155;  Stearns  v.  Fraleigh, 
McCann  v.  Randall,  147  Mass.  81.  39  Fla.  603;  1  Ames  on  Trusts  (2d 
See  1  Ames  on  Trusts  (2d  ed),  249.  ed.),  220,  n.  In  England  the  Mar- 
Where  a  will  provided  for  the  ried  Women's  Property  Act,  18"^2. 
appointment  of  new  trustees  by  the  does  not  enable  a  woman,  married 
court  on  the  application  of  the  sur-  after  that  Act  became  law,  when  a 
viving  trustee  and  the  beneficiary,  trustee  of  realty  for  sale,  to  convey 
it  was  held  that  the  appointment  to  the  purchaser  without  her  Inis- 
might  be  made  by  the  court,  under  band's  concurrence,  and  by  deed 
its  general  chancery  jurisdiction,  acknowledged  by  her.  In  re  Hark- 
without  the  consent  of  the  surviv-  ness  and  Allsopp's  Contract,  [1890J 
ing  trustee,  who  was  also  a  bL-ne-  2  Ch.  358. 

419 


§  278.]  BANKKUPTCY    OF   TRUSTEES.  [CHAP.    IX. 

but  difficulties  frequently  grow  out  of  the  relation,  and  the 
courts  have  sometimes  said  that  they  would  not  make  such 
appointments.^  In  no  case  will  the  court  remove  old  trustees 
and  substitute  new  ones,  unless  satisfied  of  the  necessity  of 
the  removal,  and  of  the  fitness  of  the  new  trustee  proposed. 
Nor  will  the  court  authorize  the  new  trustees  to  nominate 
their  successors.  There  was  some  doubt  and  difference  of 
practice  at  first; ^  but  it  is  now  settled,  except  in  charities,^ 
that  the  court  will  not  delegate  this  part  of  its  jurisdiction 
to  new  appointees.^ 

§  278.  If  the  instrument  of  trust  requires  the  trustees  of  a 
charity  to  have  a  particular  residence,  it  is  irregular  to  ap- 
point others  not  answering  that  description,  provided  there 
are  those  proper  to  be  trustees.^  But  if  it  is  the  custom  to 
appoint  such  non-residents,  the  court  will  not  remove  them, 
but  will  see  that  vacancies  when  they  occur  are  properly 
filled.^  And,  generally,  if  an  irregular  appointment  has 
been  acquiesced  in  for  a  long  time,  the  court  will  not  re- 
move.'^ In  making  the  selection,  the  inquiry  is  whether  the 
proposed  appointment  is  proper,  not  whether  it  is  the  most 
proper.^ 

Picquet  v.  Swann,  4  Mason,  455;  Griffith  v.  Griffith,  5  B.  Mon.  113; 
Gibson's  Case,  1  Bland,  138 ;  Watkins  v.  Jones,  28  Ind.  12  ;  Gardner  v. 
Weeks,  32  Ga.  696. 

1  Dean  v.  Sanford,  9  Rich.  Eq.  423.  But  the  court  will  not  appoint 
the  husband  trustee,  under  a  trust  for  the  separate  use  of  his  wife.  Ely 
V.  Burgess,  11  R.  I.  115;  Ex  parte  Hunter,  Rice,  Ch.  (S.  C.)  294. 

2  Joyce  V.  Joyce,  2  Moll.  276 ;  White  v.  White,  5  Beav.  221. 

3  Lewin  on  Trusts,  606  (5th  ed.). 

4  Bayley  v.  Mansell,  4  Madd.  226  ;  Brown  v.  Brown,  3  Y.  &  C.  395; 
Bowles  V.  Weeks,  14  Sim.  591  ;  Oglander  v.  Oglander,2  De  G.  &  Sm.  381 ; 
Southwell  V.  Ward,  Taml.  314;  Holder  v.  Durbin,  11  Beav.  594;  overrul- 
ing White  V.  White,  5  Beav.  221. 

6  Att.  Gen.  v.  Cowper,  1  Bro.  Ch.  439. 

«  Att.  Gen.  v.  Daugars,  33  Beav.  621 ;  Att.  Gen.  v.  Clifton,  32  Beav. 
596 ;  Att.  Gen.  v.  Stamford,  1  Phill.  737. 

7  Att.  Gen.  v.  Cuming,  2  Y.  &  C.  Ch.  Ca.  150. 
®  Lancaster  Charities,  7  Jur.  (x.  s.)  96. 

420 


CHAP.    IX.]  BANKRUPTCY   OF  TRUSTEES.  [§  279. 

§  279.  It  is  laid  down  in  several  cases,  that  if  a  trustee 
becomes  bankrujit  he  may  be  removed,'  or  if  he  becomes  in- 
solvent and  compounds  with  his  creditors;  and  this  is  on  the 
ground  that  the  cestui  que  trust  has  a  right  to  have  the  trust 
administered  by  responsible  trustees,  (a)  The  English  Bank- 
rupt Act^  provides,  that,  if  a  trustee  becomes  bankrupt,  the 
chancellor,  on  petition  and  due  notice,  may  order  the  trust 
estate  to  be  conveyed  by  the  bankrupt,  the  assignees,  and  all 
other  persons  interested,  to  such  other  persons  as  the  chan- 
cellor shall  think  fit,  upon  the  same  trusts.  Under  this  stat- 
ute it  has  been  determined  that  the  court  will  exercise  its 
discretion  whether  to  remove  the  bankrupt  or  not,^  but  that 
prima  facie  the  bankrupt  is  to  be  removed,*  although  he  may 
have  obtained  his  discharge.^  But  the  court  will  not  inter- 
fere long  after  the  bankruptcy  to  remove  the  trustee,  if  he 
has  obtained  his  discharge.^  Generally  the  insolvency  or 
bankruptcy  of  a  trustee  docs  not  disqualify  him  for  the 
trust, ^  nor  docs  his  bankruptcy  affect  the  trust  estate  in  his 
hands;  and  his  certificate  does  not  discharge  him  from  fidu- 
ciary obligations.*^     In  the  United  States,  trustees    are,   or 

1  Bainbrigge  v.  Blair,  1  Beav.  495 ;  In  re  Roche,  1  Conn.  &  Laws, 
306;  Com.,  &c.  v.  Archbold,  11  Ir.  Eq.  187;  Harris  v.  Harris,  29  Beav. 
107. 

2  12  &  13  Vict.  0.  106,  §  130. 

8  Re  Roche,  2  Dr.  &  W.  289  ;  2  H.  L.  Cas.  401 

*  Bainbrigge  v.  Blair,  1  Beav.  495. 
6  Ibid. 

6  Re  Bridgman,  1  Dr.  &  Sm.  164. 

»  Shryock  v.  AVaggoner,  28  Pa.  St.  430  ;  Turner  v.  Maule,  5  Eng.  L.  & 
Eq.  222 ;  Ex  parte  Watts,  4  Eng.  L.  &  Eq.  67. 

*  Belknap  v.  Belknap,  5  Allen,  468. 

(a)  A  trustee  will  not  be  removed  v.  Lewis,  [1891]  2  Ch.  81.     A  mort- 

nieri'ly  because  he  has  been  in  finan-  gagee  who  is  a  trustee  and  has  be- 

cial  dilKculties  which  have  been  sur-  come  bankrupt,  cannot,  as  defendant 

mounted.     Assets    Realization    Co.  to  a  foreclosure  suit  by  a  prior  mort- 

V.  Trustees,  &c.,  Ins.  Corp.,  05  L.  J.  gagee,  properly  represent  his  cestui 

Ch.  74 ;  44  W.  R.  126.  "An  insolvent  que  trusts,  who  are  necessary  parties, 

trustee  is  not  a  sufficient  party  to  a  under  the  English  practice.    Francis 

suit,so  thattheres/!//Y"e'r!<.'>Vmaybe  v.  Harrison,  43  Ch.  D.  183. 
bound."     Per  North,  J.,  in  Aylward 

421 


§  280.]  BANKEUPTCY   OF   TRUSTEES.  [CHAP.   IX. 

may  be,  required,  in  the  great  majority  of  cases,  to  give 
bonds  or  security  for  the  safety  of  the  trust  fund :  in  all  such 
cases  it  would  seem  that  the  bankruptcy  of  the  trustee  would 
not  per  se  render  him  removable,  unless  there  was  some  mis- 
conduct that  rendered  it  proper  for  the  court  to  exercise  a 
sound  discretion,  (a) 

§  280.  In  Bogle  v.  Bogle, ^  the  court  determined  that  one 
who,  without  compensation  and  for  no  definite  time,  under- 
took a  trust  for  the  benefit  of  another  was  entitled  to  a  decree 
discharging  him,  when  the  further  care  of  the  property  be- 
came inconvenient  to  him.  Generally,  trustees  who  have 
acted  are  not  entitled,  as  against  the  trust  estate,  to  refuse 
at  pleasure  to  continue :  they  must  have  some  good  cause  to 
entitle  them  to  be  relieved. 2(/;)  If  they  have  received  a 
legacy  or  other  benefit  given  to  them  as  trustees,  they  cannot 
be  allowed  to  retire  except  for  good  cause, ^  at  least  without 
restoring  the  legacy.  It  is  a  good  cause  for  relief  if  the 
cestui  que  trust  incumber  and  complicate  the  estate,  and 
embarrass  the  trustee  in  the  performance  of  his  duties.^ 
But  where  there  is  no  cause  for  a  discharge,  except  the  wish 
of  the  trustee,  or  his  convenience,  he  ought  to  pay  the  costs 
of  the  proceeding,  and  not  impose  the  burden  and  expense 
upon  the  estate ;  ^  and  so  if  the  old  trustee  is  removed  for 

1  3  Allen,  158. 

2  Greenwood  v.  Wakeford,  1  Beav.  576 ;  Cruger  v.  Halliday,  11  Paige, 
314 ;  Jones  v.  Stockett,  2  Bland,  409  ;  Re  Meloney,  2  Jon.  &  La.  391. 

8  Craig  V.  Craig,  3  Barb.  Ch.  76. 

*  Howard  v.  Rhodes,  1  Keen,  481 ;  Coventry  v.  Coventry,  id.  758 ; 
Greenwood  v.  Wakeford,  1  Beav.  576 ;  Hamilton  v.  Frye,  2  Moll.  458. 

5  Matter  of  .Tones,  4  Sandf.  Ch.  615;  Howard  v.  Rhodes,  1  Keen,  581; 
Courtenay  v.  Courtenay,  3  Jou.  &  La.  529. 

(a)  See  Moorman  v.  Crockett,  90  cause  prevents  a  settlement  of  his 
Va.  185 ;  Deroy  v.  Richards,  46  accounts.  In  re  Olmstead,  49  N.  Y. 
Pitts.  L.  J.  78  ;  New  York  Security  S.  104.  See  Conant  v.  Wright,  48 
Co.  V.  Saratoga  Gas  Co.,  88  Hun,  id.  422.  The  court  may  impose 
569.  conditions  on  accepting  a  resigna- 

(b)  A  trustee  will  not  be  allowed  tion.  In  re  Curtiss,  37  N.  Y.  S. 
to  resign  if  a  pending  suit  or  other  586. 

422 


CHAP.    IX.]  BANKRUPTCY   OF   TRUSTEES.  [§  280. 

misconduct  on  his  part.  ^  (a)  But  if  the  trustee  has  a  good 
reason  fur  his  discharge,  he  will  be  entitled  to  his  costs  out 
of  the  estate  as  between  solicitor  and  client.^  Courts  of 
equity,  by  virtue  of  their  general  chancery  powers,  have 
jurisdiction  to  accept  the  resignation  of  trustees,  or  to  remove 
them  for  cause,  and  to  appoint  new  trustees;  and  courts  of 
probate  in  several  States  have  power  l)y  statute  to  remove 
and  appoint  new  trustees,  whether  they  are  created  by  will 
or  deed. 3  Proceedings  are  generally  commenced  directly  for 
the  removal  and  appointment  of  trustees;  but  when  a  bill  or 
petition  is  already  pending  for  the  administration  of  the 
trust,  the  appointment  or  removal  may  be  made  upon  motion 
in  those  proceedings,*  And,  further,  if  the  trusts  created  in 
an  instrument  are  of  such  a  nature  that  they  can  be  severed 
without  injury  to  the  estate,  courts  may  allow  the  trustee  to 
resign  a  part,  and  will  commit  that  part  to  other  trustees 
under  proper  arrangements  for    security.^     But  courts  will 

^  Ex  parte  Greenhouse,  1  Madcl.  92;  Howard  i;.  Rhodes,  1  Keen,  581. 

2  Coventry  v.  Coventry,  1  Keen,  758  ;  Taylor  v.  Glanville,  3  ^ladd. 
176;  Curteis  v.  Chandler,  G  id.  123;  Greenwood  v.  Wakeford,  1  Beav. 
581. 

*  Bowditch  V.  Bannelos,  1  Gray,  220;  King  v.  Donnelly,  5  Paige,  4G; 
De  Peyster  v.  Clendining,  8  Paige,  205  ;  Field  v.  Arrowsmith,  3  Humph. 
442  ;  McCosker  v.  Brady,  1  Barb.  Ch.  329;  In  re  Potts,  1  Ash.  340;  :\lat- 
ter  of  Mechanics'  Bank,  2  P)arb.  S.  C.  440  ;  Dawson  iv  Dawson,  Kice,  Eq. 
243;  Lee  v.  Randolf,  2  Hen.  &  M.  12;  In  re  Eastern  R.  R.  Co.,  120 
Mass.  412. 

*  V.  Osborne,  6  Yes.  455;  Webb  v.  Shaftesbury,  7  Yes.  487; 

I'.  Roberts,  1  J.  &  W.  251;  Ex  parte  Potts,  1  Ash.  340. 

^  Craig  V.  Craig,  3  Barb.  Ch.  76.  But  where  there  is  a  single  power 
of  appointment  in  the  trust  instrument,  though  the  estates  are  of  a  differ- 
ent description,  or  are  held  under  a  different  title,  or  upon  different 
trusts,  there  is  no  authority  for  dividing  the  trusts,  and  appointing  differ- 

(«)  A  trustee  or  guardian  is  not  strument  on  the  ground  of  fraud  on 

to  be  cliarged  personally  for  the  ex-  the  part  of  the  creator  of  the  trust, 

penses  incurred  in  a  successful  resis-  a  beneficiary  thereunder  cannot  re- 

tance  to  proceedings  for  his  removal,  quire  payment  of  the  income  thereby 

Coggins  V.  Flythe,  113  N.  C.  102.  jjrovid.'d  for  him.     Bissell  v.  Couti- 

While  proceedings  by  a  creditor  ueutal  Trust  Co.,  55  N.  Y.  S.  570. 
are  pendiug  to  set  aside  a  trust  in- 

423 


§  281.]      FOR   WHAT   CAUSES   TRUSTEES  MAY  RESIGN.      [CIIAP.  IX. 

not  remove  trustees  against  their  will  from  one  part  of  the 
trust,  and  leave  them  burdened  with  the  responsibility  of  the 
remainder.  ^  If  the  cestuis  request  a  trustee  who  has  misap- 
propriated funds,  &c.,  to  resign,  and  make  a  promise  to  him 
on  consideration  that  he  will  do  so,  the  promise  is  void ;  it 
was  the  trustee's  duty  under  such  circumstances  to  comply 
with  the  request.  2 

§  281.  If  a  testator  in  his  will  appoint  his  executor  to  be  a 
trustee,  it  is  as  if  different  persons  had  been  appointed  to 
each  office; 2  a  court  of  equity  cannot  remove  him  from  the 
executorship,  for  courts  of  probate  have  exclusive  jurisdic- 
tion over  the  appointment  and  removal  of  administrators  and 
executors ;  but  if  the  office  of  trustee  is  separate  from  and 
independent  of  the  office  of  executor,  a  court  of  equity  may 
remove  him  from  the  office  of  trustee,  and  leave  him  to  act 
as  executor ;  or  if  he  has  completed  his  duties  as  executor, 
and  is  holding  and  administering  the  estate  simply  as  trus- 
tee, a  court  of  equity  may  remove  him.*  (a) 

ent  sets  of  trustees  for  the  different  estates  or  trusts.  Cole  v.  Wade,  16 
Ves.  27;  Re  Anderson,  1  Llo.  &  Goo.  t.  Sugd.  29;  Curtis  i;.  Smith,  6 
Blatch.  537. 

^  Sturges  V.  Knapp,  31  Vt.  1. 

2  Withers  v.  Ewing,  40  Ohio  St.  406,  407. 

8  Parsons  v.  Lyman,  5  Blatch.  C.  C.  170 ;  Perkins  v.  Lewis,  41  Ala. 
649.  The  fact  of  qualification  as  executor  by  a  person  named  in  the  wiU 
both  as  executor  and  trustee  does  not  of  itself  prove  his  acceptance  of  the 
oflice  of  trustee.     Anderson  v.  Earle,  9  S.  C.  460. 

4  Wood  V.  Brown,  34  N.  Y.  339 ;  Leggett  v.  Hunter,  25  Barb.  81  ;  19 
N.  Y.  445;  Craig  v.  Craig,  3  Barb.  Ch.  76;  Matter  of  Wordsworth,  2 
Barb.  Ch.  381;  Ex  parte  Dover,  5  Sim.  500;  Quackenboss  v.  Southwick, 
41  N.  Y.  117. 

(a)  This  applies  to  a  trustee  who  an  executor  so  escape  on  the  ground 

resides  within  the  jurisdiction,  but  that  he  is  now  a  trustee.       Cranson 

who  was  created  trustee  by  the  will  v.  Wilsey,  71  Mich.   356  ;  Wooden 

of  a  citizen  of  another  State,  never  v.  Kerr,  91  Mich.  188;  McBride  v. 

proved     within     the     jurisdiction.  Mclntyre,  id.  406 ;  Loveman  w.  Tay- 

Jones  V.  Jones,   30  N.   Y.    S.  177,  lor,  85  Tenn.  1 ;  Leonard  v.  Haworth, 

187.     A  trustee  cannot  escape  ac-  171  Mass.  496.     Upon  the  question 

counting  in  equity  on  the  ground  when  an  executor  becomes  a  trustee, 

that  he  is  still  an  executor,  nor  can  see  1  Ames  on  Trusts  (2d  ed.),  73  ; 
424 


CHAP.  IX.]       WHO  may  institute  ruocEEDiNCs.  [§  282. 

§  282.  Courts  of  C(iuity,  having  jurisdiction  to  remove  and 
appoint  trustees,^  may  be  applied  to  either  by  bill  or  peti- 
tion;'^ (a)  or,  if  a  bill  is  already  pending  for  administration 
of  the  estate,  application  may  be  made  in  those  proceedings, 
by  motion. 3  All  persons  interested  in  the  trust  may  institute 
proceedings  in  their  own  names,  but  notice  should  be  given 
to  all  other  parties  in  interest.*     If  the  trustee  must  give 

1  Bowditch  V.  Bannelos,  1  Gray,  220,  and  cases  cited  last  section;  Wil- 
liamson V.  Suydam,  G  Wall.  723 ;  Livingston,  Pet'r,  34  N.  Y.  5o5.  In 
absence  of  statutory  provision,  the  weight  of  authority  requires  that  the 
proceedings  should  commence  by  bill. 

'■^  Mitchell  V.  Fitner,  15  Ga.  319;  Ex  parte  Knust,  1  Bail.  Eq.  489;  Ex 
parte  Greuville  Academies,  7  Rich.  47U;  Matter  of  Van  Wyck,  1  Barb. 
Ch.  565  ;  Ex  parte  Ilussey,  2  Whart.  330  ;  Ex  parte  Rees,  3  V.  &  B.  11 ; 
Miller  o.  Knight,  1  Keen,  129  ;  Barker  v.  Peile,  2  Dr.  &  Sm.  340.  This 
matter  is  mostly  regulated  by  the  statutes  of  the  several  States.  Although 
proceedings  by  statute  may  be  originated  by  petition,  yet  the  proceedings 
may  be  by  bill.  Barker  v.  Peile,  ut  supra;  lie  Foster's  Will,  15  Hun 
(N.  Y.),  387 ;  Be  Ballou,  Pet'r,  11  R.  I.  360.  In  some  cases  it  is  said  that 
the  right  to  proceed  by  petition  is  confined  to  cases  where  there  is  a 
breach  of  the  trust.  In  re  Sanford  Charity,  2  Mer.  456  ;  Re  Livingston, 
34  N.  Y.  5G7. 

8  V.  Osborne,  6  Ves.   455  ;  v.  Roberts,  1  J.  &  W.  251 ; 

Webb  V.  Shaftesbury,  7  Ves.  487;  Ex  parte  Potts,  1  Ash.  340. 

*  Abbott,  Pet'r,  55  Maine,  580 ;  Williamson  v.  W^ickersham,  2  Coll. 
52;  Guion  v.  Melvin,  69  N.  C.  242;  Wardle  v.  Hargreaves,  11  Law  Jour. 
(n.  s.)  Ch.  126;  Henry  v.  Doctor,  9  Ohio,  49.  As  to  who  are  parties  in- 
terested entitled  to  notice.  Bradstreet  v.  Butterfield,  129  Mass.  339. 
In  Pennsylvania,  under  an  act  which  provides  that  proceedings  shall  be 

Hodges'  Estate,  63  Vfc.  661;  Prince  trustee,  he  must  give  bond  as  trus- 

V.  Ladd  (Texas),  15  S.  W.  159.  tee  before  he  can  exonerate  himself 

The  settlement  of  an  executor's  from     his     liability     as     executor, 

accounts  in  the  probate  court,  and  White  v.    Ditson,  140    Mass.    351 ; 

the  transfer  of  a  balance  to  his  ac-  Crocker  v.  Dillon,  133  Mass.  91. 

count  as  trustee,  do  not  conclusively  (a)  The  removal  of  trustees  and 

end  the  right  to  question  his  invest-  the  appointment  of  subsequent  ones 

ments  made  as  executor.     Mattocks  should  be  by  bill  in  equity,  and  not 

V.  Moulton,  84  Maine,  545.  by  petition.     Zehubar  r.  Spillman, 

As    actual    payment   cannot   be  25  Fla.  591,  594.      See  1  Dan.  Ch. 

made  by  a  person  to  himself,  it  is  Prac.    348 ;    Tuttle    v.    Merchants' 

held  in  Massachusetts  that,   when  Nat.  Bank,  19  Mont.  11. 
the  same  person   is  executor  and 

425 


§  282.]  WHO   MAY   INSTITUTE   PEOCEEDINGS.  [CIIAP.   IX. 

security  for  the  fund,  notice  is  within  the  discretion  of  the 
court ;^  but  if  the  trust  instrument  provides  that  notice  of 
the  proceedings  for  the  appointment  of  new  trustees  shall  be 
given  to  particular  persons,  the  appointment  will  be  irreg- 
ular if  the  notice  is  not  given.  ^  The  cestui  que  trust  and 
those  directly  interested  may  of  course  originate  the  suit,^ 
and  those  interested  in  remainder  or  reversion  may  begin 
proceedings.^  The  trustees  may  bring  the  suit  against  the 
cestui  que  trust  ;^  or  one  or  more  of  several  trustees  may 
bring  the  suit  against  one  or  more  of  their  cotrustees,  join- 
ing the  cestui  que  trust  either  as  plaintiffs  or  defendants.^  In 
all  public  charities  the  Attorney  General  may  begin  proceed- 
ings by  information  or  petition  with  or  without  a  relator.'^ 
But  where  a  settlor  had  conveyed  property  to  a  trustee  for 
himself  for  life,  and  at  his  decease  to  his  issue  according  to 
the  statute  of  distributions,  and  in  case  of  his  dying  without 
issue  to  his  nephews,  it  was  held  that  the  trust  was  only  an 

upon  petition  "  by  any  person  interested,  whether  such  interest  be  imme- 
diate or  remote,"  it  was  held  that  the  interest  for  such  a  purpose  must 
be  such  as  will  certainly  fall  into  possession  sometime ;  and  a  bare  possi- 
bility, dependent  on  the  death  of  the  first  taker  without  issue,  is  not  such 
an  interest  as  will  authorize  a  citation.  Keene's  App.,  60  Penn.  St.  506. 
But  see  Hartman's  App.,  90  id.  206,  under  a  subsequent  statute. 

1  Matter  of  Robinson,  .37  N.  Y.  261. 

2  Washington,  &c.  R.  R.  Co.  v.  Alexander,  &c.  R.  R.  Co.,  19  Grat. 
592. 

3  Bainbrigge  v.  Blair,  1  Beav.  495 ;  Bennett  v.  Honywood,  Amb.  708 ; 
Buchanan  r.  Hamilton,  5  Ves.  722;  Portsmouth  v.  Fellows,  5  Madd.  450  ; 
Howard  w.  Rhodes,  1  Keen,  581;  Millard  v.  Eyre,  2  Yes.  Jour.  94;  In 
Matter  of  Smith's  Settlement,  2  De  G.  &  Sm.  781 ;  Ex  parte  Tunno,  1 
Bail.  Eq.  .395. 

4  Finlay  r.  Howard,  2  Dr.  &  W.  490 ;  Cooper  v.  Day,  1  Rich.  Eq.  26  ; 
Re  Livingston,  84  N.  Y.  567;  Joyce  v.  Gunnels,  2  Rich.  Eq.  260;  Ee 
Sheppard,  1  N.  R.  76,  overruling  same  case,  10  W.  R.  704  ;  s.  c.  4  De  G., 
F.  &  J.  423. 

*  Coventry  v.  Coventry,  1  Keen,  758 ;  Greenwood  v.  Wakef ord,  1  Beav. 
576. 

«  Lake  v.  De  Lambert,  4  Ves.  592. 

'  Att.  Gen.  v.  London,  3  Bro.  Ch.  171;  Att.  Gen.  v.  Stephens,  3  M.  & 
K.  347;  Att.  Gen.  v.  Clack,  1  Beav.  467;  Re  Bedford  Charity,  2  Swanst. 
520;  Wilson  r.  Wilson,  2  Keen,  251;  Re  Fowey's  Charities,  4  Beav.  225. 
426 


CHAP.   IX.]         WHO   MAY   INSTITUTE    riiOCEEDINGS.  [§  283. 

implied  trust  for  the  nephewB ;  that  they  had  no  interest  in 
the  express  trusts  fur  the  settlor  for  life ;  and  that  they  could 
not  maintain  a  petition  for  the  removal  of  the  trustee.^  And 
where  a  cestui  que  trust  drew  an  order  on  the  trustees  in  favor 
of  her  children,  it  was  held  that  this  did  not  give  the  chil- 
dren such  an  interest  in  the  funds  that  they  were  parties  to 
proceedings  for  the  appointment  of  new  trustees. ^  If  a  trus- 
tee retires,  allowing  a  new  trustee  to  be  appointed,  without 
communication  with  the  cestui  que  trust,  and  a  suit  is  insti- 
tuted complaining  of  such  appointment,  but  seeking  no  relief 
against  such  retiring  trustee,  he  is  not  a  necessary  party. ^ 
And  if  a  trustee  transfers  the  property  to  a  new  trustee  ap- 
pointed by  order  of  court,  he  will  be  bound  by  the  proceed- 
ings, though  they  were  irregular  and  without  notice  to  him.^ 
If  some  of  the  cestuis  que  trust  are  minors,  they  ought  to  have 
a  guardian  ad  litem,  but  a  new  trustee  may  be  appointed.^ 
The  proceedings  ought  to  be  in  a  court  having  jurisdiction  of 
the  original  trust. ^ 

§  283.  If  all  the  parties  are  sui  juris,  and  consent  to  the 
appointment  of  the  new  trustee,  the  court  will  at  once  make 
the  appointment,  and  direct  the  conveyances  to  be  made.'^ 
But  generally  it  will  be  referred  to  a  master  to  report  a 
proper  person  to  be  appointed.^  Upon  the  coming  in  of  the 
master's  report,  exceptions  may  be  taken  to  it  in  the  usual 
manner ;  but  the  exceptions  must  be  to  the  unfitness  of  the 

1  In  re  Livingston,  34  N.  Y.  555;  Ex  parte  Brown,  Coop.  295. 

2  Hawley  v.  Ross,  7  Paige,  103. 

8  Marshall  v.  Sladden,  7  Hare,  427. 

4  Thomas  v.  Iligham,  1  Bail.  Eq.  222. 

6  Hunters.  Gibson,  16  Sim.  158. 

6  Howard  r.  Gilbert,  39  Ala.  72. 

'  O'Keeffe  v.  Calthorpe,  1  Atk.  IS  ;  Young  v.  Young,  4  Cranch,  C.  C. 
499. 

8  Howard  r.  Rhodes.  1  Keen,  581;  Buch.anan  v.  Hamilton.  5  Ves.  722; 
Att.  Gen.  v.  Stephens,  3  M.  &  K.  352;  Millard  r.  Eyre.  2  Ves.   Jr.   94; 

Seton's  Decrees,  249;  Matter  of  Stuyvesant,  3  Edw.  Ch.  229;  c. 

Roberts,  1  J.  &  W.  251  ;  Att.  Gen.  i\  Clack,  1  Beav.  474  ;  Att.  Gen.  r. 
Arran,  1  J.  &  W.  229. 

427 


§  284.]         PROCEEDINGS   TO   SUBSTITUTE   TRUSTEES.      [CHAP.   IX. 

person  recommended,^  and  not  that  some  other  one  is  more 
fit.  2 


§  284.  The  appointment  of  a  new  trustee  is  not  complete 
until  the  property  is  vested  in  him;  therefore  the  court 
usually  embraces,  in  the  decree  appointing  a  new  trustee,  a 
direction  for  a  proper  conveyance  to  be  executed  to  him 
alone,  or  to  him  jointly  with  the  continuing  or  remaining 
trustees,  by  all  the  requisite  parties,  whether  remaining  trus- 
tees, or  heirs  or  representatives  of  the  last  survivor,  or 
trustees  who  have  been  removed  from  office.^  If  the  old 
trustee  refuses  to  deliver  the  property  to  the  new  incumbent, 
the  former  and  his  bondsmen  are  liable.^  In  some  States  it 
is  provided  by  statute,  that,  upon  qualification  by  the  newly 
appointed  trustee,  the  trust  estate  shall  vest  in  him  in  like 
manner  as  it  had  or  would  have  vested  in  the  trustee  in  whose 
place  he  is  substituted.^  It  has  been  determined  that  no 
conveyance  is  necessary  where  such  statutes  are  in  force,  but 
that  the  trust  estate  vests  immediately  upon  the  appointment, 
by  virtue  of  the  statute,  with  all  the  powers  and  duties  essen- 
tial to  the  purposes  of  the  trust,  ^  And  so  if  the  instrument 
of  trust  provides  for  the  vesting  of  the  estate  in  the  remain- 
ing, surviving,  or  new  trustees,  upon  the  removal,  resigna- 
tion, death,  and  appointment  of  others,  the  trust  estate  will 
vest  according  to  the  provisions  of  the  instrument,  as  the 
creator  of  the  trust  may  mould  it  at  his  pleasure.'  It  has 
already  been  seen  that,  if  one  of  the  trustees  disclaims  with- 

1  Att.  Gen.  v.  Dyson,  2  S.  &  S.  528, 

2  Ibid. 

8  O'Keeffe  v.  Calthorpe,  1  Atk.  18. 

*  Bassett  v.  Granger,  136  Mass.  174;  McKim  v.  Doane,  137  Mass.  195. 

6  Mass.  Public  Stat.;  Trustees  Act,  1850,  12  &  13  Vict.  c.  74,  §§  33- 
36;  Stearly's  App.,  3  Grant,  270.     See  Golder  v.  Bressler,  105  111.  419. 

6  Parker  v.  Converse,  5  Gray,  341;  Re  Fisher's  Will,  1  W.  R.  505; 
Smith  V.  Smith,  3  Dr.  72 ;  Woolridge  v.  Planters'  Bank,  1  Sneed,  297  ; 
Goss  V.  Singleton,  2  Head,  67;  Gibbs  v.  Marsh,  2  Met.  243,  253;  Duffy 
V.  Calvert,  6  Gill,  487;  Burdick  r.  Goddard,  11  R.  I.  516. 

'  Ellis  r.  Boston,  Hartford,  &  Erie  R.  R.,  107  Mass.  13;  National 
Webster  Bank  v.  Eldridge,  115  Mass.  424. 
428 


CHAP.    IX.]      riiOCEEDINGS   TO   SUBSTITUTE   TRUSTEES.  [§  234. 

out  having  acted  or  accepted  the  trust,  the  estate  vests  in  the 
acting  trustees;  and  if  a  sole  trustee  disclaims  before  acting, 
the  estate  vests  in  the  heirs-at-law  subject  to  the  trust.  ^  So 
where  a  vacancy  results  from  the  incapacity  of  the  trustee, 
or  upon  his  removal  from  the  jurisdiction  of  the  court,  the 
want  of  power  to  compel  a  conveyance,  and  the  necessity  of 
the  case,  rcfjuire  the  court  to  recognize  the  power  of  the 
remaining  trustee  to  convey  to  his  new  cotrustee  without  a 
conveyance  from  the  retiring  or  removed  trustee. ^  In  trusts, 
that  do  not  come  within  the  words  or  the  spirit  of  the  statute 
in  relation  to  the  vesting  of  trust  estates  in  new  appointees, 
and  in  cases  where  the  trust  instrument  is  silent  concernins 
the  vesting  of  the  estate  in  new  trustees,  and  there  is  no 
necessiti/  for  a  departure  from  the  ordinary  rule  of  a  convey- 
ance, a  conveyance  must  be  made  to  the  new  trustee,  in  order 
to  vest  the  estate  in  him.^  When  the  removed  trustee  fails 
to  obey  an  order  of  court  for  the  delivery  of  the  trust  prop- 
erty to  the  new  trustee,  the  latter  may  sue  on  the  bond  of 
the  former  trustee  for  damages.^  The  acceptance  by  the  new 
trustee  of  a  statement  found  among  the  papers  of  a  deceased 
trustee  showing  his  receipts  and  disbursements  on  account 
of  the  trust  estate  may  amount  to  an  accounting  between  the 
old  and  new  trustees.^  (a) 


1  Ante,  §  273. 

2  Cape  V.  Bent,  9  Jur.  653;  O'Reiley  f.  Alderson,  8  Hare,  101 ;  Men- 
nard  v.  Wilford,  1  Sm.  &  Gif.  426;  Eaton  v.  Smith,  2  Beav.  236;  Cooke 
V.  Crawford,  13  Sim.  91;  In  re  Moravian  Soc,  26  Beav.  101. 

8  Folley  V.  Wontner,  2  Jac.  &  W.  24;  Owen  v.  Owen,  1  Atk.  496; 
Foster  v.  Goree,  4  Ala.  440;  Crosby  r.  Huston,  1  Tex.  203;  Miller  i-. 
Priddon,  1  De  G.,  U.  &  G.  339. 

*  Phillips  V.  Ross,  36  Ohio  St.  458. 

^  Gorsuch  V.  Briscoe,  56  Md.  573. 

(a)  New  trustees  are  not  affected  York  it  seems  that  the  appointment 

with  notice  of  incumbrances  on  the  of  a  new  trustee  does  not  preclude 

trust   estate    not    disclosed   in    the  an  administrator  from  denying  the 

trust  documents,  or  by  the  retiring  existence  of  the  trust  as  created  by 

trustee  who  knew  thereof.    Hallows  his  decedent,      lie   Carpenter,   131 

V.  Lloyd,  39  Ch.  D.  686.      In  New  N.  Y.  86. 

429 


§  286.]  NUMBER   TO   BE   APPOINTED.  [CHAP.   IX. 

§  285.  A  trustee  may  be  relieved  from  his  office  by  the 
consent  of  all  parties  interested,  without  the  decree  of  a 
court,  even  if  the  instrument  of  trust  is  silent  upon  that  sub- 
ject. But  the  transaction  operates  rather  as  an  estoppel  of 
the  cestui  que  trust  than  as  an  affirmative  transfer  of  power. 
Thus,  no  cestiii  que  trust  who  concurs  in  a  breach  of  trust  can 
afterwards  call  the  trustee  to  an  account  for  the  disastrous 
consequences  ;i  therefore,  if  a  trustee  conveys  the  trust  estate 
to  another  person,  and  appoints  such  other  person  trustee, 
and  all  the  cestuis  que  trust  execute  the  conveyances,  or  other- 
wise consent  to  the  transaction,  they  would  be  forever  pre- 
cluded from  holding  the  retiring  trustee  responsible  for  any 
delegation  of  his  office,  or  for  any  loss  that  occurred  after- 
wards. ^  But  the  trustee  must  see  to  it  that  all  the  cestuis  que 
trust  are  parties  to  the  transaction  and  concur;  for,  even  in 
the  case  of  a  large  number  of  creditors,  each  individual  must 
act  for  himself,  or  he  is  not  estopped,  and  the  consent  of  a 
majority  cannot  affect  the  rights  of  one  who  did  not  concur.^ 
The  trustee  must  also  see  to  it  that  all  the  cestuis  que  trust 
are  sui  juris,  and  not  married  women,  infants,  or  other  per- 
sons incapable  of  acting,  or  of  no  legal  capacity  to  consent. 
For  if  there  are  such  cestuis  que  trust,  there  can  be  no  dis- 
charge and  substitution  of  trustees  without  the  sanction  of 
the  court,  in  the  absence  of  a  power  in  the  instrument  of 
trust;*  or  if  there  may  be  parties  in  interest  not  yet  in  exist- 
ence, as  if  the  trust  is  for  children  not  yet  born,  there  can 
be  no  change  of  trustees  by  consent.  But  a  married  woman 
is  considered  sui  juris  in  respect  to  her  sole  and  separate 
estate,  where  there  is  no  restraint  against  anticipation  or 
alienation.^ 

§  286.    If  there  are  two  or  more  trustees  named  in  an  in- 
strument of  trust  with  power  to  appoint  successors,  and  they 

1  Wilkinson  v.  Parry,  4  Russ.  276.  2  ibij. 

2  Colebrook's  Case,  cited  Ex  parte  Hughes,  6  Ves.  622;  Ex  parte  Lacj, 
id.  628-630,  n. 

*  Cruger  v.  Halliday,  11  Paige,  314. 

6  Hulme   V.   Hulme,   1   Bro.    Ch.   20;    Lewin   on   Trusts,   540,    541 
(5th  ed.). 

430 


CHAP.    IX.]  NUMBER    TO    BE    APPOINTED.  [§  286. 

all  retire  at  the  same  time,  they  ow^ht  not  to  appoint  a 
single  trustee  onlt/  in  the  place  of  two  or  more.'  In  such 
case  the  settlor  has  fixed  the  number  which  he  thinks  neces- 
sary for  the  proper  administration  and  safety  of  the  trust 
fund;  and  if  a  single  trustee  is  ajipointed  and  wishes  to  re- 
tire, he  ought  not  to  appoint  a  plurality  of  trustees,  for  in 
such  a  case  he  ought  not  to  increase  the  machinery  and  ex- 
pense of  the  trust  contrary  to  the  settlor's  intention. ^  But 
the  power  may  be  so  drawn  that  several  may  be  put  in  place 
of  one,  or  one  in  the  place  of  several.  Thus  where  a  testator 
appointed  two  trustees,  and  the  surviving  or  continuing  trus- 
tee or  trustees  were  authorized  to  appoint  one  or  more  per- 
sons to  be  trustee  or  trustees,  in  the  room  of  the  trustee  or 
trustees  so  dying,  etc.,  the  surviving  trustee  appointed  two 
new  trustees,  and  the  appointment  was  held  by  the  court  to 
be  authorized.  3  So,  three  trustees  have  been  appointed  in 
place  of  two,*  and  three  have  been  authorized  in  place  of 
four,^  and  Uvo  in  place  of  one,*'  and  four  in  place  of  five.' 
In  another  case,  one  trustee  was  appointed  by  the  court  in 
place  of  two.^  And  if  a  successor  cannot  be  found  to  a  retir- 
ing trustee,  the  court  may  appoint  the  continuing  trustees  to 

1  Hulme  V.  Hulme,  2  M.  &  K.  682 ;  Mass.  Gen.  Hospital  c.  Amory,  12 
Pick.  445. 

'  Rex  V.  Lexdale,  1  Burr.  448 ;  Ez parte  Davis,  2  Y.  &  C.  Ch.  Ca.  468; 
3  Mont.  D.  &  De  G.  304. 

8  D'Almaiue  v.  Anderson,  Lewin  on  Trusts,  468  (5th  ed.)  ;  Hill  on 
Trustees,  182. 

*  Meinertzhagen  v.  Davis,  1  Col.  C.  C.  335. 

6  Emmet  v.  Clarke,  3  Gif.  32. 

6  Ilillman  v.  Westwood,  3  Eq.  R.  142. 

''  Corrie  v.  Byrom,  Lewin  on  Trusts,  468  (5th  ed.) ;  Hill  on  Trustees, 
181. 

8  Greene  i'.  Borland,  4  Met.  330.  In  this  case  the  appointment  was 
assented  to  by  all  parties,  and  great  stress  was  laid  upon  that  fact.  The 
couit  might  also  have  said  that  the  proceedings  were  in  a  collateral  matter, 
and  that,  as  long  as  the  appointment  by  a  court  having  jurisdiction 
stood  unreversed,  its  validity  could  not  be  tried  in  another  and  distinct 
proceeding.  The  case  of  Greene  v.  Borland  is  not  necessarily  inconsistent 
witli  Mass.  Gen.  Hospital  v.  Amory,  12  Pick.  445,  decided  by  the  same 
court.  Dixon  i'.  Homer,  12  Cush.  41 ;  Att.  Gen.  r.  Barbour,  121  Mass. 
563 ;  Hammond  v.  Granger,  128  Mass.  272. 

431 


§  287.]      FORM    OF   POWER   FOR    NEW   APPOINTMENT.       [CIIAP.  IX. 

be  sole  trustee  or  trustees.^  Where  real  estate  is  given  in 
trust  to  several  persons  and  to  the  survivors  or  survivor  if 
some  decline  to  act,  the  others  have  the  whole  legal  estate 
and  all  the  powers  of  the  trust.  ^ 

§  287.  The  duties  and  powers  of  trustees  cannot  be  dele- 
gated to  others,  unless  there  is  express  authority  for  that 
purpose  given  in  the  instrument  creating  the  trust.^(a)  It 
follows,  that  a  power  to  appoint  new  trustees  can  seldom  or 
never  exist,  except  in  express  trusts  created  by  deed  or  will. 
The  person  who  creates  the  trust  may  mould  it  into  whatever 
form  he  pleases:  he  may  therefore  determine  in  what  man- 
ner, in  what  event,  and  upon  what  condition  the  original 
trustees  may  retire  and  new  trustees  may  be  substituted. 
All  this  is  fully  within  his  power ;  and  he  can  make  any  legal 
provisions  which  he  may  think  proper  for  the  continuation 
and  succession  of  trustees  during  the  continuance  of  the 
trust. ^  And  vacancies  cannot  be  filled  in  any  other  way  than 
that  named  by  the  grantor,  unless  in  consequence  of  a  statu- 

1  In  re  Stokes  Trusts,  L.  R.  13  Eq.  333. 

2  Long  V.  Long,  62  Md.  33,  see  §  414,  Shockley  v.  Fisher,  75  Mo.  498. 

3  Selden  v.  Vermilyea,  3  Comst.  336  ;  AVilkinson  v.  Parry,  4  Russ.  272 
Adams  v.  Paynter,  1  Coll.  532  ;  Chalmers  v.  Bradley,  1  J.  &  W.  68 
Swarez  v.  Pumpelly,  2  Sandf .  Ch.  336  ;  Wilson  v.  Towle,  36  N.  H.  129 
Bayley  v.  Mansell,  4  Madd.  226;  Winthrop  v.  Att.  Gen.,  128  Mass.  258. 

*  TVhelan  v.  Reilly,  3  TV.  Va.  597.  The  testator  may  authorize  the 
trustee  appointed  by  him  to  appoint  his  successor  by  -will.  Abbott,  Pet'r, 
55  Me.  580.  While  the  settlor  may  make  such  provisions  as  he  may  think 
best  for  filling  vacancies,  as  a  general  proposition,  yet  it  has  been  held  that 
a  power  reserved  to  an  assignor  in  a  deed  of  trust  for  creditors,  to  appoint 
new  trustees  to  fill  vacancies  occurring  in  the  board,  was  void  as  inter- 
fering with  the  rights  of  creditors.  Planck  v.  Schermerhorn,  3  Barb.  Ch. 
644 ;  Robins  v.  Embry,  1  Sm.  &  M.  Ch.  207. 

(a)  See   infra,  §  408.     A  power  power  of   appointment,   see   In  re 

in  the  nature  of  a  trust,  or  a  trust  Radcliffe,  [1892]  1  Ch.  227. 
coupled  with  a  duty,  cannot  be  re-  The   question  whether   a  power 

leased ;  but  this  rule  does  not  apply  of  appointment  has  been  executed, 

to  the  release  of  a  power  not  coupled  is  determined   by  the   law   of  the 

with  a  duty.     In  re  Somes,  [1896]  donor's    domicil.       Cotting    v.    De 

1  Ch.  250.     As  to  the  release  of  a  Sartiges,  17  R.  L  668. 
432 


CHAP.   IX.]      FORM   OF   POWER   FOR   NEW   APPOINTMENT.       [§  288. 

tory  provision,^  or  of  a  failure  on  the  part  of  the  remaining 
trustees  to  perform  the  duty  of  filling  the  vacancy,  in  which 
case  equity  will  interfere.^  The  power  to  appoint  new  trus- 
tees in  place  of  the  original  ones  can  only  be  given  by  the 
author  and  creator  of  the  trust.  For,  in  cases  where  courts 
are  called  upon  to  appoint  trustees,  authority  to  appoint 
successors  will  not  be  given,  but  recourse  must  be  had  to  the 
courts  toties  quoties.^(a)  There  is,  however,  an  exception  to 
this  rule  in  case  of  charitable  trusts ;  for,  in  such  cases,  to 
save  costs,  and  for  convenience,  courts  of  efjuity  will  not  only 
appoint  new  trustees  to  fill  vacancies,  but  they  will  sanction 
a  scheme  for  the  administration  of  the  charity,  which  pro- 
vides for  the  appointment  and  succession  of  trustees  without 
a  continual  recourse  to  legal  proceedings.^ 

§  288.  Every  well-drawn  instrument,  creating  trusts  in- 
tended to  continue  for  any  considerable  time,  should  contain 
authority  and  power  for  any  of  the  trustees  to  relinquish  the 
trust,  as  well  as  provisions  for  filling  vacancies  occasioned 
by  resignation,  death,  or  incapacity.  Such  provisions  save 
the  cost  and  trouble  of  constant  applications  to  courts.  In 
framing  these  powers,  great  care  should  be  taken  to  provide 
for  every  possible  contingency  in  which  a  resignation  or  new 
appointment  may  become  convenient  or  necessary.  The 
power  should  clearly  express  the  cases  in  which  new  trustees 
may  be  appointed,  and  embrace  every  event  which  can  render 

1  Colder  v.  Bressler,  105  111.  419. 

2  Wilson  V.  Towle,  36  N.  H.  129 ;  Oglander  v.  Oglander,  2  De  G.  & 
Sm.  381 ;  Holder  v.  Durbin,  11  Beav.  594 ;  Bowles  v.  Weeks,  14  Sim.  591; 
Bayley  r.  Mansell,  4  Madd.  226;  Southwell  i-.  Ward,  Taml.  314.  A  differ- 
ent practice  was  followed  in  Joyce  v.  Joyce,  2  Moll.  276 ;  Sampayo  /•. 
Gould,  12  Sim.  426,  and  White  v.  White,  5  Beav.  221  ;  but  these  cases 
are  not  authorities  now.     See  Brown  v.  Brown,  3  Y.  &  C.  395. 

8  Att.  Gen.  v.  Winchelsea,  3  Bro.  Ch.  373-  Att.  Gen.  v.  Shore,  1  M. 
&  Cr.  394  ;  12  Sim.  426. 

(n)  By  the  New  York  statute,  a  dies  or  retires.     Royce  v.   Adams, 

successor  maybe  appointed  by  the  123  X.   Y.   402;    57   Ilun,  415. 
court  when  one  of  several  trustees 

VOL.  I  —28  433 


§  288.]       FORM   OF  POWER  FOR   NEW   APPOINTMENT.      [CHAP.   IX. 

such  an  appointment  necessary  or  desirable,  as  the  death  of 
all,  any  one,  or  more  of  the  original  or  substituted  trustees, 
their  absence  from  the  country  or  State,  their  wish  to  resign, 
their  original  refusal  to  accept,  and  their  future  incapacity 
or  unfitness  to  discharge  the  duties ;  the  instrument  should 
also  point  out  clearly  and  by  whom  and  in  what  manner  the 
new  appointments  are  to  be  made.  Such  provisions  are 
extremely  convenient,  and  save  much  perplexity,  expense, 
and  trouble ;  and  where  a  settlement  is  to  be  drawn  up  under 
articles,  by  the  direction  of  the  court,  it  will  order  such  pro- 
visions to  be  inserted  as  are  just  and  reasonable^     Where  it 

1  Lindow  v.  Fleetwood,  6  Sim.  152;  Brewster  v.  Angell,  1  J.  &  W. 
628;  Sampayo  v.  Gould,  12  Sira.  426;  Belmout  v.  O'Brien,  2  Kern.  394. 
The  following  form  is  approved  by  both  Mr.  Lewin  and  ]\Ir.  Hill  as  a 
proper  power  for  the  appointment  of  new  trustees  :  — 

"  Provided  always,  and  it  is  hereby  further  declared,  that  if  the  trustees 
hereby  appointed,  or  any  of  them,  or  any  future  trustees  or  trustee  hereof, 
shall  die  (either  before  or  after  their  or  his  acceptance  of  the  trusts 
thereof),  go  to  reside  abroad,  desire  to  be  discharged  from,  renounce, 
decline,  or  become  incapable  or  unfit  to  act  in  the  trusts  of  these  presents, 
while  the  same  trusts  or  any  of  them  shall  be  subsisting,  then,  and  in 
every  or  any  such  cases,  and  so  often  as  the  same  shall  happen,  it  shall  be 
lawful  for  the  said  {the  cestuis  que  trust  lifany']  for  life),  or  the  survivors  of 
tliem,  by  any  writing  or  writings,  under  their,  his,  or  her  hands  or  hand, 
attested  by  two  or  more  witnesses,  and  after  the  decease  of  such  survivor, 
then  for  the  surviving  or  continuing  trustees  or  trustee  hereof,  or  the 
executors  or  administrators  of  the  then  last  acting  trustee  (whether  such 
surviving  trustees  or  trustee,  or  executors  or  administrators,  respectively, 
shall  be  willing  to  act  in  other  respects  or  not),  by  any  writing  or  writings, 
imder  their  or  his  hands  or  hand,  attested  by  two  or  more  witnesses,  to 
nominate  and  substitute  any  person  or  persons  to  be  trustee  or  trustees 
hereof  in  the  place  of  the  trustee  or  trustees  so  dying,  going  to  reside 
abroad,  desiring  to  be  discharged,  renouncing,  declining,  or  becoming  in- 
capable or  unfit  to  act  as  aforesaid.  And  that,  so  often  as  any  new  trus- 
tee or  trustees  hereof  shall  be  appointed  as  aforesaid,  all  the  hereditaments, 
&c.,  which  shall,  for  the  time  being,  be  holden  upon  the  trusts  hereof,  shall 
be  thereupon  conveyed,  assigned,  and  transferred  respectively,  in  such 
manner  that  the  same  may  become  legally  and  eifectually  vested  in  the 
acting  trustees  hereof  for  the  time  being,  to  and  for  the  same  uses,  and 
upon  the  same  trusts,  and  with  and  subject  to  the  same  powers  and  pro- 
visions as  are  herein  declared,  and  contained  of  and  concerning  the  same 
hereditaments  and  premises  respectively,  or  such  of  the  same  uses,  trusts, 
434 


CHAP.    IX.]      FORM   OF   POWER   FOR   NEW   APPOINTMENT.       [§  288. 

is  necessary  to  act  under  the  powers  thus  given  in  the  instru- 
ment of  trust,  it  is  of  the  utmost  consc<iucncc  that  there 
should  be  an  exact  compliance  with  the  power  and  authority 
as  given,  (a)  For  if  the  circumstances  do  not  justify  or 
demand  a  new  ap})ointment,  as  contemjilatcd  in  the  instru- 
ment of  trust,  or  if  there  is  any  irregularity  as  to  the  persons 
by  whom  the  new  appointment  is  made,  or  as  to  the  manner 
in  which  it  is  made,  the  retiring  trustee  will  still  be  liable 
for  any  breaches  of  trust  which  may  be  committed,  and  the 
new  trustee  will  be  incapable  of  exercising  any  legal  authority 
over  the  trust  property,  and  will  be  a  trustee  only  de  son 
tort,  if  he  interfere;  and  any  purchaser  of  the  trust  property 

powers,  and  provisions  as  shall  then  be  subsisting  or  incapable  of  taking 
effect. 

"  And  that  every  new  trustee,  to  be  from  time  to  time  appointed  as 
aforesaid,  shall  henceforth  be  competent  in  all  things  to  act  in  the  execu- 
tion of  the  trusts  hereof,  as  fully  and  effectually,  and  with  all  the  same 
powers  and  authorities  to  all  purposes  whatsoever,  as  if  he  had  hereby 
been  originally  appointed  a  trustee  in  the  place  of  the  trustee  to  whom  he 
shall,  whether  immediately  or  otherwise,  succeed." 

(a)  In    general,    what    is   done  Balch,  154  Mass.  318 ;  Emmons  r. 

under  a   power   of  appointment  is  Shaw,  171  Mass.  410.    An  appointee 

to  be  referred  to  the  instrument  by  by  will  has  no  rights  until  the  will 

which    the  power  is    created,    and  is  proved ;   generally  appointments 

operates  as  a  disposition  of  the  es-  by  will  are  intended  to  speak  from 

tate  of  the  donor.     Heath  r.  With-  the  death  of  the  testator,  and  not 

ington,   6   Cush.    497;     Osgood  v.  to  leave  any  intervening  time  dur- 

Bliss,    141  Mass.    474;    ColUns   v.  ing  which  the  fund  is  simply  to  ac- 

"Wickwire,   102  Mass.    143 ;  Dennis  cumulate.     Loring  v.  Mass.  Ilorti- 

i'.    Holsapple,    148    Ind.    297.     In  cultural  Society,  171  Mass.  401. 

^lassachusetts,  when  one  has  a  gen-  When  a  debtor,  having  a  general 

eral  power  of  appointment  and  ex-  power  to  appoint  property  which  he 

ecutes  it  by  will,  the   property  so  never  owned,  exercises  that  power 

appointed  is  regarded  as  assets  of  in  favor  of  volunteers,  the  property 

his  estate,  and  his  creditors  are  en-  in  their  hands  is  burdened  with  his 

titled   to  it   in    preference    to    his  debts,  if    needed   to  satisfy   them, 

voluntary  appointees;   for  the  pur-  Freeman   v.    Butters,    94  Va.    400. 

poses  of  administration,  the   prop-  An  equitable  estoppel  does  not  ap- 

erty  should  be  administered  by  the  ply  in  favor  of  a  volunteer.     Lovett 

executor  of  the  will  of  the  party  v.  Lovett,  [1698]  1  Ch.  82. 
exercising    the    power.     Oluey    v. 

435 


§  290.]  CAKE   IN    APPOINTING   NEW   TRUSTEES.        [CIIAP.    IX. 

may  find  his  title  utterly  worthless. ^  The  retiring  trustee 
should  be  careful  not  to  part  with  the  control  of  the  fund 
before  the  new  trustee  has  been  actually  appointed  and  quali- 
fied ;  for  if  he  transfer  it  into  the  name  of  the  intended  trus- 
tee, and  by  some  accident  the  appointment  is  not  completed, 
the  old  trustee  still  remains  answerable  for  the  fund.^ 

§  289.  These  powers  of  appointing  successors  are  fre- 
quently matters  of  personal  confidence  reposed  in  the  trus- 
tees appointed  by  the  settlor,  and  they  are  always  matters  of 
general  trust  and  confidence  to  be  strictly  executed,  (a)  The 
court  will  not  prevent  the  exercise  of  discretion  given  for 
appointment,  but  will  see  that  it  is  used  to  subserve  the  pur- 
poses of  its  creation.  2  Being  powers  given  to  third  persons 
over  the  property  of  others,  they  are  construed  with  great 
strictness,  and  a  great  variety  of  decisions  have  been  made 
upon  the  various  forms  in  which  the  power  has  been  ex- 
pressed. Questions  have  arisen :  (1)  As  to  the  time,  occa- 
sion, or  event  when  a  new  appointment  may  be  made ;  (2)  As 
to  the  person  or  persons  by  whom  the  appointment  may  be 
made;  (3)  As  to  the  persons  who  may  be  appointed;  (4)  As 
to  the  number  of  persons  who  may  be  appointed ;  (5)  As  to 
the  manner  of  making  the  new  appointment. 

§  290.  It  should  always  be  carefully  considered  whether 
the  circumstances  or  events  are  such  as  the  settlor  intended 
for  the  retirement  of  one  or  more  of  the  trustees  appointed 

1  Adams  v.  Paynter,  1  Col.  532  ;  Walker  v.  Brungard,  13  Sm.  &  M. 
723. 

2  Pearce  v.  Pearce,  22  Beav.  248. 
8  Bailey  v.  Bailey,  2  Del.  Ch.  95. 

(a)  The  power  of  appointing  new         Under  the  Massachusetts  statute, 
trustees  is  fiduciary,  and  the  donee    a  discretion  to  pay  income  is  a  part 
of  such  power  cannot  appoint  him-    of  the  trust,  and  may  be  exercised 
self,  either   solely  or  jointly  with    by  a  new  trustee.    Wemyss  y.  White, 
others.     In  re  Skeats'    Settlement,     159  Mass.  484. 
42  Ch.  D.  522.    In  re  Newen,  [1894] 
2  Ch.  297. 
436 


CHAP.  IX.]      rowER  of  appointing  successors.  [§  290. 

by  him,  and  the  sul)stitution  of  new  trustees;  thus  in  a  case 
Avhcre  tlie  power  provided  that,  "  in  case  either  of  the  trustees, 
the  said  A,  and  B.,  shall  happen  to  die,  or  desire  to  be  dis- 
charged from,  or  neglect  or  refuse  or  become  incapable  to  act 
in  the  trust,  it  shall  be  lawful  for  the  survivor  or  survivors 
of  the  trustees  so  acting,  or  the  executors  or  administrators 
of  the  last  surviving  trustee,  by  any  writing,  &c.,  to  nomi- 
nate a  new  trustee."  Both  the  trustees  declining  to  act, 
they  executed  a  conveyance  to  two  other  persons,  as  an 
appointment  of  them  as  new  trustees  under  the  power ;  and 
it  -was  held  that  the  power  was  not  well  executed,  that  the 
word  "survivor"  referred  to  the  trustee  "continuing  to  act," 
that  it  was  the  intention  of  the  testator  that  in  case  of  the 
death,  refusal,  or  incapacity  of  one  of  his  trustees,  the  re- 
maining one  who  had  been  named  by  him,  and  who  was  the 
object  of  his  confidence,  should  have  the  power  of  associating 
with  himself  some  other  person,  and  that  the  event  of  both 
declining  at  the  same  time  was  not  provided  for.^  (a)  "Where 
a  settlement  upon  a  chapel  contained  a  power  for  the  ap- 
pointment of  new  trustees  upon  the  desertion  or  removal  of 
any  existing  trustee.  Lord  Eldon  held  that  the  case  of  a  trus- 
tee, who  left  the  trust  on  account  of  its  being  converted  by 
the  other  trustees  to  purposes  different  and  distinct  from  the 
intention  of  the  settlor,  was  an  event  not  provided  for.^     And 

1  Sharp  V.  Sharp,  2  B.  &  Ad.  404 ;  Guion  v.  Pickett,  42  Miss.  77. 

-  Att.  Gen.  v.  Pearson,  3  Mer.  412.  In  Morris  v.  Preston,  7  Ves.  547, 
power  was  given  to  a  husband  and  wife,  or  the  survivor,  with  the  consent 
of  the  cotrustees  or  trustees,  to  appoint  any  new  trustee  or  trustees,  and 
upon  such  appointment  the  surviving  cotrustees  should  convey  the  estate, 
so  that  the  surviving  trustee  or  trustees,  and  the  new  trustee  or  trustees, 
might  be  jointly  concerned  in  the  trusts  in  the  same  manner  as  such  sur- 
viving trustee  and  the  person  so  dying  would  have  been  in  case  he  were 
living.  No  new  appointment  was  made  till  after  the  death  of  both  the 
original  trustees.  The  new  appointees  having  made  a  sale,  the  purchaser 
objected  to  the  title  on  the  ground  of  the  invalidity  of  their  appointment 
under  the  power;  but  the  objection  was  waived  without  argument.  ]Mr. 
Sugden  regrets  that  the  opinion  of  the  court  was  not  taken.  2  Sugd.  on 
Powers,  529.     lie  has,  however,  never  since  acted  on  the  doctrine.     As 

(a)  See  Tn  re  Wheeli'r,  [1S9G]  1  Ch.  315;  In  re  Stamford,  id.  288. 

437 


§  291.]  WHEN   THE    POWER   MAY   BE    EXERCISED.      [CHAP.    IX. 

SO  where  cestuis  que  trust  were  to  appoint  a  trustee  upon  the 
refusal  or  neglect  of  the  others  to  act,  it  was  held  that  they 
could  not  appoint  upon  the  death  of  one  of  them.^  But  gen- 
erally where  the  power  to  appoint  new  trustees  is  given  to 
the  survivor  of  several  trustees,  it  may  be  legally  exercised 
by  the  continuing  trustee  upon  the  resignation  or  refusal  of 
the  others  to  act.^  (a) 

§  291,  In  some  earlier  cases,  it  was  held  that  where  a 
power  was  given  to  the  surviving  trustee  or  trustees  to  ap- 
point new  trustees  in  case  of  the  death  of  either  of  their  co- 
trustees, it  did  not  authorize  an  appointment  to  fill  a  vacancy 
caused  by  the  death  of  trustees  during  the  lifetime  of  the  tes- 
tator, upon  the  ground  that  persons  dying  in  the  lifetime  of 
the  testator  had  never  filled  the  character  of  trustees  so  as  to 
come  within  the  terms  of  the  power ;  ^  but  these  are  overruled 
by  the  later  cases,  and  it  may  be  considered  as  settled  that 
the  surviving  trustee  or  trustees  may  fill  vacancies  caused  by 
the  death  of  persons  nominated  by  the  testator,  whether  they 
die  in  his  lifetime  or  afterwards.*  (h)  So  if  the  continuing 
trustee  or  trustees  are  to  appoint  upon  the  refusing  or  declin- 
ing of  any  of  the  original  trustees,  they  may  appoint  upon 

where  a  similar  power  was  given,  to  a  tenant  for  life,  of  appointing  new 
trustees,  one  trustee  died  and  the  other  became  bankrupt,  and  it  was  ob- 
jected that  the  power  of  appointment  was  gone,  Sir  Edward  Sugden 
ruled  to  the  contrary.  lie  Roche,  1  Conn.  &  Laws,  306  ;  2  Dr.  &  War. 
287. 

1  Guion  V.  Pickett,  42  INIiss.  77. 

2  Sharp  V.  Sharp,  2  B.  &  Ad.  405;  Eaton  v.  Smith,  2  Beav.  236;  Travis 
V.  lUingworth,  2  Dr.  &  Sm.  344;  Cooke  v.  Crawford,  13  Sim.  91;  Hawkins 
V.  Kemp,  3  East,  410. 

8  Walsh  V.  Gladstone,  14  Sim.  5;  Winter  v.  Rudge,  1.5  Sim.  576. 
4  Lonsdale  v.  Beckett,  4  De  G.  &  Sm.  73;  In  re  Hadley's  Trust,  5  De 
G.  &  Sm.  67 ;  9  Eng.  L.  &  Eq.  67 ;  Noble  v.  Meymott,  14  Beav.  477. 

(a)  Under  §  31  of  the   English  nal   will.      In   re  Parker's    Trusts, 

Conveyancing  Act  of  1881,  the  sole  [1894]    1    Ch.    707;    Nicholson   v. 

surviving  trustee  of  a  will  cannot  Field,  [1893]  2  Ch.  511. 
by  will  continue  the  trust  by  ap-  (i)  See  In  re  Scott,  [1891]  1  Ch. 

pointing  new  trustees  of  the  origi-  298,  303. 
438 


CHAP.   IX.]      WHEN   THE    POWER  MAY   BE   EXERCISED.  [§  292. 

the  disclaimer  of  any  one  or  more ;  ^  and  so  a  payment  of  the 
truat  fund  into  court,  under  an  order  or  permission  to  that 
cllect,  is  a  refmiiKj  or  declining  by  the  trustee  that  authorizes 
the  exercise  of  the  powcr.^ 

§  292.  If  the  settlement  provides  that  a  new  appointment 
may  be  made  on  either  of  the  trustees  becoming  unfit,  the 
power  may  be  exercised  if  one  of  them  becomes  bankrupt ;^ 
but  if  the  word  is  "  incapable  "  without  the  word  "  unfit,"  a  new 
appointment  cannot  be  made,  for  the  word  "  incapable  "  means 
personal  incapacity  and  not  pecuniary  embarrassment,^  and 
a  bankrupt  who  had  some  time  before  obtained  a  first-class 
certificate  of  discharge  was  not  regarded  as  coming  within 
the  term  "  unfit. "  ^  But  where  a  trustee  of  property  in  London 
had  been  domiciled  in  New  York  for  twenty  years,  he  was 
declared  incapable  without  the  meaning  of  the  word.^  Where 
a  power  declared  that,  "  if  the  trustees  were  not  deemed 
suitable  and  sufficient  to  act  as  trustees  by  the  cestui  que  trust, 
he  might  remove  them,  it  was  held  to  be  a  matter  of  discre- 
tion in  the  beneficiary  to  remove  the  trustees  or  not."" 

1  Re  Roche,  1  Conn.  &  ]>aws,  306 ;  Walsh  v.  Gladstone,  14  Sim.  2 ; 
Mitchell  V.  Nixon,  1  Ir.  Eq.  155  ;  Cook  v.  Ingoldsby,  2  Ir.  Eq.  375;  Travis 
V.  Illingworth,  2  Dr.  &  Sm.  344. 

2  Re  William's  Settlement,  4  K.  &  J.  87. 

8  In  re  Roche,  1  Conn.  &  Laws.  308;  2  Dr.  &  War.  287. 

4  Re  Watt's  Settlement,  9  Hare,  106;  Turner  v.  Maule,  5  Eng.  L.  & 
Eq.  222  ;  15  Jur.  761.  In  re  Bignold's  Settlement,  L.  R.  7  Ch.  223 ;  Re 
Blanchard,  3  De  G.,  F.  &  J.  131.  A  statute  in  New  York  provides  that 
aduiinistration,  &c.,  shall  not  be  granted  to  any  person  who  shall  be  judged 
incompetent  by  the  surrogate  to  execute  the  duties  of  the  trust  by  reason  of 
drunkenness,  improvidence,  or  want  of  understanding.  Under  this  statute 
it  was  held  that  mere  moral  turpitude  does  not  per  se  disqualify,  but  that 
professional  gambling  was  such  evidence  of  improvidence  as  prima  facie  to 
disqualify.  Coope  v.  Lowerre,  1  Barb.  Ch.  45;  McMahon  v.  Harrison, 
2  Seld.  443. 

6  Re  Bridgman,  1  Dr.  &  Sm.  164. 

«  Mennard  r.  Welford,  1  Sm.  &  Gif.  426.  The  opposite  doctrine  was 
previously  held  in  Withington  v.  Withington,  16  Sim.  104  ;  O'Reilly  v. 
Alderson,  8  Hare,  101. 

">  Walker  r.  Brungard,  13  Sm.  &  Mar.  758. 

439 


§  294.]     BY  WHOM  THE  rowEii  may  be  exercised,     [chap.  IX. 

§  293.  Where  a  suit  is  already  pending  in  court  for  the 
administration  of  the  trust,  the  donees  of  the  power  to  ap- 
point cannot  exercise  it  without  first  obtaining  the  court's 
approval  of  the  person  proposed.^  When  it  is  desired  to 
change  the  trustees  during  the  pendency  of  a  suit,  a  motion 
must  be  made,  and  such  motion  is  referred  to  a  master  to 
report  upon  the  person  proposed.  The  master  is  to  regard 
the  power  of  appointment ;  but  he  is  not  bound  to  approve 
the  proposed  person.  ^  If  an  appointment  is  made,  however, 
by  the  old  trustees,  it  is  not  contempt,  nor  is  it  altogether 
void ;  but  it  puts  the  burden  upon  those  making  the  appoint- 
ment of  proving,  by  the  strictest  evidence,  that  it  was  just 
and  proper.  If  they  fail  in  such  proof,  the  act  will  be  de- 
clared null  and  void.^  So  if  the  trustee  or  other  person 
having  power  to  appoint  a  new  trustee  is  a  lunatic,  the  court 
must  appoint.^ 

§  294.  It  will  at  once  be  seen  that  the  power  of  appointing 
other  trustees  can  be  exercised  only  by  those  to  whom  it  is 
expressly  given.  Therefore,  if  the  power  is  not  given  to  any 
one,  new  trustees  can  be  appointed  only  by  the  court, ^except 
where,  as  in  England,  statutory  provisions  may  change  this 
rule.^  So  if  the  power  be  given  to  particular  persons  by 
name,  without  saying  more,  or  adding  words  of  survivorship, 
it  must  be  exercised  jointly,  and  upon  the  death  of  one  of 
them  the  power  will  be  gone.'^     But  if  a  power  be  given  to  a 

1  Millard  v.  Eyre,  2  Ves.  Jr.  94;  Webb  v.  Shaftesbury,  7  Ves.  480; 
Peatfield  v.  Benn,  17  Beav.  552  ;  Kennedy  r.  Turnley,  G  Ir.  Eq.  399;  Att. 

Gen.  V.  Clack,  1  Beav.  467;   Middleton  i'.  Reay,  7  Hare,  106;  v. 

Roberts,  IJ.  &  W.  251. 

2  Webb  ('.  Shaftesbury,  7  Ves.  487 ;  Middleton  v.  Reay,  7  Hare,  106. 

3  Cape  V.  Bent,  3  Hare,  249;  Att.  Gen.  i'.  Clack,  1  Beav.  467;  Baker 
V.  Lee,  8  H.  L.  Ca.  495. 

4  In  re  Sparrow,  1  L.  R.  5  Ch.  662  ;  In  re  White,  L.  R.  5  Ch.  698; 
In  re  Cuming,  id.  72;  In  re  Heaphy,  18  W.  R.  1070;  In  re  Nicholl,  id. 
416. 

5  Wilson  V.  Towle,  36  N.  H.  129 ;  Pierce  v.  Weaver,  65  Tex.  44,  citing 
the  text. 

6  Act  44  and  45  Vict.  c.  41. 

'  Co.  Litt.  113  a;  1  Sugd.  Row.  141. 
440 


CHAP.  IX.]      BY  WHOM    THE    TOWER   MAY  BE    EXERCISED.       [§  294. 

class  consisting  of  several  persons,  as  to  "my  trustees,"  "my 
sons,"  or  "my  brothers,"  and  not  to  individuals  by  their 
proper  names,  the  authority  will  exist  in  the  class,  so  long 
as  the  plural  number  remains,  although  it  may  have  been 
reduced  in  number  by  the  death  or  resignation  of  some ;  ^ 
and  where  a  {)o\ver  is  given  to  "my  executors"  as  a  class,  it 
may  be  exercised  by  a  single  surviving  executor. ^  A  power 
to  be  exercised  by  the  survivor  of  two  persons  cannot  be 
executed  by  the  one  dying  first, ^  nor  even  by  the  two  acting 
together  during  the  lives  of  both.*  So  a  power  given  to  the 
surviving  or  continuing  trustee  to  appoint  a  cotrustee,  if 
either  of  the  two  decline  to  act,  docs  not  authorize  an  ap- 
pointment if  loth  decline.^  So  the  power  of  appointment 
cannot  be  executed  by  heirs^  personal  representatives^  or  as- 
siyns  of  any  trustee,  unless  the  authority  is  expressly  given 
in  the  instrument  of  trust. *"  In  these,  as  in  all  other  cases, 
the  authority  will  be  strictly  confined  to  those  persons  who 
answer  the  precise  description.  Thus  a  power  given  to  a 
trustee,  his  heirs,  executors,  or  administrators,  caimot  be 
executed  by  a  devisee  or  assignee  of  the  trustee.'  It  is, 
however,  well  established,  that  a  power  given  to  a  surviving 
trustee  may  be  executed  by  a  continuirig  or  acting  trustee, 
although  a  cotrustee  who  disclaimed  is  still  living.^ 

1  Gartland  v.  Mayott,  2  Vern.  105;  Eq.  Cas.  Ab.  202 ;  2  Freem.  105; 
Dyer,  177  a;  Co.  Litt.  112  b;  Byam  v.  Byam,  10  Beav.  58;  Belmont  v. 
O'Brien,  2  Kern.  391;  1  Sugd.  Pow.  144;  McKim  v.  Handy,  4  Md.  Ch. 
230. 

2  1  Sugd.  Pow.  244;  Davoue  r.  Fanning,  2  Johns.  Ch.  252. 
8  Bishop  of  Oxford  v.  Leighton,  2  Vern.  37G. 

•»  McAdam  i:  Logan,  3  P.ro.  Ch.  320. 

6  Sharp  V.  Sharp,  2  B.  &  Ad.  405. 

«  Bradford  v.  Belfield,  2  Sim.  264 ;  Eaton  v.  Smith,  2  Beav.  236  ;  Da- 
voue r.  Fanning.  2  Johns.  Ch.  252  ;  Titley  v.  Wolstenholme,  7  Beav.  424; 
Granville  v.  McNeale,  7  Hare,  15G  ;  Hall  r.  May,  3  Kay  &  J.  5S5;  Cooke 
V.  Crawford,  13  Sim.  91. 

•>  Bradford  r.  Belfield,  2  Sim.  2G4 ;  Cole  v.  Wade,  16  Ves.  47  ;  Cape  v. 
Bent,  3  Hare,  245 ;  Ackleston  i'.  Heap,  1  De  G.  &  Sm.  640 ;  McKim  v. 
Handy,  4  Md.  Ch.  230;  Mortimer  v.  Ireland,  6  Hare,  196. 

8  Lane  ».  Debenham,  11  Hare,  188  ;  Eaton  v.  Smith,  2  Beav.  23G; 
Sharp  V.  Sharp,  2  B.  &  A.  405. 

441 


§  296.]      BY  WHOM   THE   POWER  MAY  BE   EXERCISED.      [CHAP.  IX. 

§  295.  The  number  of  parties  undertaking  to  execute  a 
power  must  come  within  the  exact  description  given  of  the 
number  of  those  who  are  to  execute  it ;  thus,  if  a  power  is 
given  to  be  exercised  by  a  certain  specified  number,  or  when 
they  are  reduced  to  a  certain  number,  it  cannot  be  exercised 
by  a  less  number,  and  is  gone  if  not  exercised  before  the 
number  is  reduced  below  the  number  which  is  named  for  its 
execution.^ (a)  But  the  power  maybe  executed  before  the 
trustees  are  reduced  to  the  lowest  number  specified,  as  where 
a  conveyance  to  twenty-five  trustees  for  a  chapel  directed  that 
when,  by  death  or  otherwise,  the  number  should  be  reduced 
to  fifteen,  a  majority  of  those  remaining  should  make  up  the 
number  to  twenty-five.  The  number  was  reduced  to  seven- 
teen; and  twelve,  the  others  dissenting,  elected  eight  new 
trustees,  and  it  was  held  a  good  appointment  under  the 
power. '-^ 

§  296.  A  married  woman  may  exercise  the  power  of  ap- 
pointing new  trustees,  if  such  power  is  expressly  given  to 
her,  as  she  may  exercise  any  other  power  given  to  her  in 
an  instrument  of  trust; ^(5)  and  she  may  appoint  her  hus- 
band trustee;*  but  an  infant  cannot  exercise  such  power 
unless  it  is  simply  collateral.^  The  power  may  be  given  to 
a  firm,  their  agents  and  assigns,^  but  not  to  a  court  that  has 

1  Att.  Gen.  v.  Floyer,  2  Vern.  748  ;  Att.  Gen.  v.  Litchfield,  5  Ves.  825. 

2  Dupleix  V.  Roe,  1  Anst.  86. 
8  Ante,  §  49. 

4  Tweedy  v.  Urquhart,  30  Ga.  446. 

6  Ante,  §  52. 

6  Leggett  V.  Grimmett,  36  Ark.  498. 

(a)  See   In  re  Lee.s'  Settlement  to  take  effect  even  if  the  wife  does 

Trusts,  [1896]  2  Ch.  508.  not  appoint,  and  in  the  particular 

(h)  Under  a  testamentary  gift  case  the  wife's  release  of  her  life's 
by  a  husband  to  his  wife  of  interest  was  held  not  to  entitle  her 
property  for  life,  with  a  power  to  absolutely  to  the  property.  In  re 
appoint  such  property  among  a  Brierley,  43  Ch.  D.  36.  A  corn- 
class,  and  also  of  the  residue  of  his  plete  power  of  disposal  given  by  a 
property  to  her,  the  residuary  gift  man's  will  by  his  widow  is  not 
does  not  prevent  the  implication  limited  by  his  verbal  directions, 
from  the  power  of  a  gift  to  the  class  McFadin  v.  Catron,  120  Mo.  252. 
442 


CHAP.    IX.]  COURTS   WILL   NOT   INTERFERE.  [§  297. 

no  authority  by  law  to  act  in  the  appointment  of  trustees. 
A  grantor  cannot  confer  new  powers  on  a  court  though  it 
may  on  the  judge  as  an  individual.^  But  if  the  court  is  one 
that  by  law  may  act  in  the  appointment  of  trustees,  the 
selection  of  the  grantor  will  be  eHective.^ 

§  297.  The  appointment  may  be  by  parol  unless  the  power 
otherwise  })rovides.*  Where  the  appointment  of  new  trus- 
tees is  given  to  the  discretion  of  the  acting  trustees,  courts 
of  equity  will  not  interfere  to  control  the  exercise  of  the  dis- 
cretion if  the  old  trustees  act  in  good  faith,^  and  if  the  ad- 
ministration of  the  trust  is  not  already  in  the  hands  of  oi 
before  the  court  by  a  pending  suit.^  Thus  the  old  trustees 
in  a  case  for  the  exercise  of  their  discretion  may  appoint 
any  suitable  person.  The  inquiry  in  such  cases  is  not 
whether  the  person  proposed  is  the  most  suitable,  but  whether 
he  is  suitable.^    It  is  generally  the  duty,  however,  of  trus- 

1  Leman  v.  Sherman,  117  111.  657;  18  Brad.  (111.)  368. 

2  Morrison  v.  Kelly,  22  111.  610. 

8  Leggett  V.  Grirnmett,  30  Ark.  498. 

*  Bowditch  V.  Bannelos,  1  Gray,  220;  Hodgson's  Settlement,  9  Ilare, 
118.  In  Bowditch  v.  Bannelos,  above  cited,  Ch.  J.  Shaw  said  :  "  But 
when  we  say  that  she  (the  cestui  que  trust)  had  power  at  her  pleasure  to 
appoint,  we  do  not  mean  to  say  that  this  was  an  arbitrary  power  to  ap- 
point a  person  unfit  or  unsuitable  to  execute  such  a  trust,  as  a  minor,  an 
idiot,  a  pauper,  or  person  incapable  of  performing  the  duties.  It  must  be 
a  person  of  full  age,  sufiicient  mental  and  legal  capacity,  and  in  all  respects 
capable  of  performing  the  required  duties.  In  case  of  trust  property  of 
real  and  personal  estate,  we  are  not  prepared  to  say  whether  an  alien,  not 
naturalized,  and  not  capable  by  law  to  hold  real  estate,  would  or  would 
not  be  a  suitable  or  legal  appointment  "We  think  the  power  was  not  ex- 
hausted by  the  appointment  of  tlie  first  substitute,  but  that  the  same  power 
existed,  on  every  resignation,  to  appoint  a  new  trustee,  pursuant  to  the 
original  trusts  ;  but  that  this  power,  by  necessary  implication,  was  limited 
to  the  appointment  of  a  person  legally  capable  of  executing  it."  Whetlier 
the  nomination  of  her  husband,  on  account  of  the  conjugal  relation,  would 
have  been  incompatible  with  the  scope  of  the  whole  instrument,  and  would 
be  a  valid  objection,  or  whether  the  fact  that  another  appointee  was  a  for- 
eigner having  no  domicil  in  the  United  States,  an  alien  not  naturalized, 
would  be  a  valid  objection,  the  court  did  not  decide,  because  the  nomina- 
tions were  withdrawn. 

6  Ante,  §293.  «  Ante,  §  278. 

443 


§  297.]  COURTS   WILL   NOT   INTERFERE.  [CHAP.   IX. 

tees  to  appoint  new  trustees,  who  are  agreeable  to  the  cestuis 
que  trust,  and  who  would  administer  the  fund  for  their  in- 
terest; to  this  end  it  is  generally  the  duty  of  the  trustees  to 
consult  the  cestuis  que  trust  as  to  the  appointment.^  And  a 
new  appointee  ought  to  consult  the  cestuis  que  trust  before 
accepting  the  office.^  An  appointment  for  the  mere  purpose 
of  having  a  particular  solicitor  employed  in  the  management 
of  the  trust  ought  not  to  be  allowed.^  Generally,  the  new 
trustees  appointed  under  a  power  should  be  amenable  to  the 
jurisdiction  of  the  court;  but  where  the  cestui  que  trust  re- 
sides abroad,  it  may  be  proper  to  appoint  trustees  in  the 
same  jurisdiction  with  the  beneficiary.^  Though  if  the 
court  is  called  upon  to  exercise  the  power,  it  will  not  ap- 
point trustees  out  of  its  jurisdiction.^  Nor  is  the  appoint- 
ment of  one  of  the  cestuis  que  trust  proper,  as  each  of  the 
cestuis  que  trust  has  a  right  to  a  disinterested  and  impartial 
trustee.^  This  rule  probably  only  affects  the  parties  to  the 
trust;  for  if  a  cestui  que  trust  should  be  appointed,  and 
should  sell  the  estate  under  a  power  of  sale,  the  purchaser 
would  be  protected.'^  Cestuis  que  trust  are  not  absolutely 
incapacitated  to  take  the  trusts,  and  courts  themselves  some- 
times appoint  them;^  but  it  is  not  generally  desirable.  So, 
near  relationship  is  not  a  disqualification;  but  it  is  almost 
always  better  to  have  a  capable  person  not  intimately  con- 
nected with  the  cestuis  que  trust.^    Nor  should  the  donee  of  a 

1  O'Reilly  r.  Alderson,  8  Hare,  101 ;  Marshall  v.  SladdeD,  7  Hare,  428; 
Peatfield  v.  Benn,  17  Beav.  522;  Nagle's  Est.,  52  Penn.  St.  154. 

2  Ibid. 

8  Marshall  v.  Sladden,  7  Hare,  428. 

*  Meinertzhagen  v.  Davis,  1  Col.  C.  C.  335 ;  Ex  parte  Tunno,  1  Bail. 
Eq.  395. 

6  Guibert's  Trust,  13  Eng.  L.  &  Eq.  372.  But  see  Ex  parte  Tunno,  1 
Bail.  Eq.  395. 

^  Passingham  v.  Sherborne,  9  Beav.  424. 

^  Reid  v.  Reid,  30  Beav.  388. 

8  Ex  parte  Glutton,  17  Jur.  988  ;  21  Eng.  L.  &  Eq.  186  ;  Ex  parte 
Couybeare's  Settlement,  1  W.  R.  458  ;  Make  v.  Norrie,  21  Hun  (N.  Y.),  128. 

3  Wilding  V.  Bolder,  21  Beav.  222,  where  the  husband  of  a  cestui  que 
trust  was  appointed  trustee,  the  court  required  him  to  undertake  to  apply 

444 


CHAP.  IX.]      COURTS  WILL  NOT  INTEKFERE.         [§  297. 

power  to  appoint  nominate  himself,  for  trustees  cannot  even 
I)ay  over  tlic  assets  to  one  of  their  own  number.^  It  is  said, 
however,  that  if  a  trust  with  power  of  appointment  is  com- 
mitted to  trustees  and  the  survivor  of  them,  his  executors  or 
administrators,  and  the  trustees  all  die,  the  appointment  is 
in  the  executor  of  the  survivor;  and,  as  the  instrument  of 
trust  declares  him  to  be  a  proper  person  to  execute  the  trust, 
he  may  appoint  himself  under  the  power.  Mr.  Lewin,  how- 
ever, says  that  "  the  exercise  of  every  power  should  be  regu- 
lated by  the  circumstances  as  they  stand  at  the  time,  and 
that  the  limitation  to  executors  cannot  dispense  with  the 
discretion  to  be  applied  afterwards. "  ^ 

for  the  appointment  of  a  new  trustee  in  case  he  became  sole  trustee,  18 
W.  R.  416;  21  L.  T.  (n.  s.),  781. 

1  V.  Walker,  5  Russ.  7 ;  Stickney  v.  Sewell,  1  M.  &  C.  14 ;  West- 

over  r.  Chapman,  1  Col.  C.  C.  177. 

^  Lewiu  on  Trusts,  472  (5th  Lond.  ed.). 


445 


§  298.]  ESTATE   OF  THE   TEUSTEE.  [CHAP.   X. 


CHAPTER  X. 

NATURE,   EXTENT,   AND   DURATION   OP   THE   ESTATE  TAKEN   BY 

TRUSTEES. 

§  298.     Where  trustees  take  and  hold  no  estate,  although  an  express  gift  is  made 
to  them.     Statute  of  uses. 

§  299.     Effect  of  the  statute  of  uses  upon  conveyancing  in  the  several  States. 

§  300.     Effect  of  the  statute  in  the  rise  of  trusts. 
§§  301,  302.     Rules  of  construction  which  gave  rise  to  trusts. 

§  303.  The  word  "  seized." 

§  304.  The  primary  use  must  be  in  the  trustee  to  raise  a  trust. 

§§  30,5,  306.     Personal  property  not  within  the  statute. 
§§  307,  308.     Where  the  statute  executes  trusts  as  uses,  and  where  it  does  not. 

§  309.  Where  a  charge  upon  an  estate  will  vest  an  estate  in  trustees,  aud 

where  not. 

§  310.  Where  the  trust  is  for  the  sole  use  of  a  married  woman. 

§  311.  Trusts  of  personalty  are  not  executed  by  the  statute. 

§  312.    The  statute  only  executes  the  exact  estate  given  to  the  trustee ;  but  the 
trustee  may  take  an  estate  commensurate  with  the  purposes  of  the 
trust  where  it  is  unexecuted  by  the  statute.     Rules. 
§§  313,  314.  Courts  may  imply  an  estate  in  the  trustee  where  none  is  given. 
§§  315,  316.  May  enlarge  the  estate  of  the  trustee  for  the  purposes  of  the  trust. 

§  317.     Illustrations,  explanations,  and  modifications  of  the  rule. 
§§  318,  319.     Rule  in  respect  to  personal  estate. 

§  320.     Distinctions  between  deeds  and  wills  in  England  and  the  United  States. 

§  298.  It  may  happen  that  although  words  of  express  trust 
are  used  in  the  grant  or  bequest  of  an  estate  to  a  trustee, 
yet  no  estate  vests  or  remains  in  the  trustee.  This  may  be 
because  only  a  poiver  is  given  and  no  estate,  as  where  a  tes- 
tator simply  directs  his  executor  to  sell  certain  property 
and  apply  the  proceeds  to  certain  purposes  instead  of  grant- 
ing the  property  to  the  executor  or  trustee  to  sell,  &c.,  or 
because  the  statute  of  uses  executes  the  legal  estate  at  once  in 
the  cestui  que  trust.^  Thus,  if  A.  grants  or  bequeaths  land 
to  B.  and  his  heirs,  in  trust  for  C.  and  his  heirs,  the  trustee, 
B.,  will  take  nothing  in  the  land,  but  the  legal  title,  as  well 

1  West  V.  Fitz,  109  111.  425. 
446 


CIIAl'.    X.]  ESTATE    OF   THE   TRUSTEE.  [§  298. 

as  the  beneficial  use,  will  vest  immediately  in  C.  ;^  for  the 
statute  of  uses, 2  so  called,  executes  the  possession  and  the 
legal  title  in  the  same  person  to  whom  the  beneficial  interest 
is  given.  As  stated  in  previous  sections,^  a  large  part  of  the 
land  in  England  was  at  one  time  held  to  uses.  The  legal 
title  was  in  one  person,  but  upon  the  trust  and  confidence 
that  such  person  would  apply  it  to  the  use  of  some  person 
named,  or  that  such  legal  owner  would  permit  some  other 
person  to  have  the  possession,  use,  and  income  of  the  estate. 
This  system,  originating  partly  in  fraud  of  the  law,  and 
partly  in  the  necessities  and  convenience  of  the  subject,  be- 
came at  last  the  source  of  great  aljuscs.  To  remedy  these 
abuses,  the  statute  of  uses  was  enacted.^     This  statute  exe- 

1  Austin  V.  Taylor,  1  Eden,  3G1 ;  Williams  v.  Waters,  14  M.  &  W.  106; 
Robinson  v.  Grey,  9  East,  1;  Chapman  v.  Blissett,  Cas.  t.  Talbot,  150; 
Broughton  v.  Langley,  2  Salk.  150  ;  2  Ld.  Raym.  873  ;  Thatcher  v.  Omans, 
3  Pick.  521 ;  Upham  v.  Varney,  15  N.  H.  466  ;  Kinch  v.  Ward,  2  Sim.  & 
St.  409,  and  see  Doe  v.  Biggs,  2  Taunt.  109  ;  Shapland  v.  Smith,  1  Bro. 
Ch.  75,  and  notes ;  Boyer  v.  Cockerell,  3  Kan.  282 ;  Witham  v.  Brooner, 
63  111.  344. 

2  27  Henry  VITI.  c.  10,  §  1.  «  Ante,  §§  3,  4. 

*  Ante,  §§  5,  6,  7.  And  see  the  preamble  of  the  statute.  The  first 
section  of  the  statute  was  as  follows  :  "  That  where  any  person  or  persons 
stand  or  be  seized,  or  at  any  time  hereafter  shall  happen  to  be  seized  of 
and  in  any  honors,  castles,  manors,  lands,  tenements,  rents,  services, 
reversions,  remainders,  or  other  hereditaments,  to  the  use,  confidence,  or 
trust  of  any  other  person  or  persons,  or  of  any  body  politic,  by  reason  of 
any  bargain,  sale,  feoffment,  fine,  recovery,  covenant,  contract,  agreement, 
will,  or  otherwise,  by  any  manner  of  means,  whatsoever  it  be;  that  in 
every  such  case,  all  and  every  such  person  and  persons,  and  bodies  politic 
that  have  or  hereafter  shall  have  any  such  use,  confidence,  or  trust  in  fee- 
simple,  fee-tail,  for  term  of  life,  or  for  years,  or  otherwise,  or  any  use,  con- 
fidence, or  trust  in  remainder  or  reverter,  shall  from  henceforth  stand  and 
be  seized,  deemed,  and  adjudged,  in  lawful  seizin,  estate,  and  possession,  of 
and  in  the  same  honors^  castles,  manors,  lands,  tenements,  rents,  services, 
reversions,  remainders,  and  hereditaments,  with  their  appurtenances,  to  all  ■ 
intents,  constructions,  and  purposes,  in  the  law  of  and  in  such  like  estates 
as  they  had  or  shall  have  in  use,  trust,  or  confidence  of  or  in  the  same; 
and  that  the  estate,  title,  right,  and  possession  that  was  in  such  person  or 
persons  that  were  or  hereafter  shall  be  seized  of  any  lauds,  tenements,  or 
hereditaments,  to  the  use,  confidence,  or  trust  of  any  such  person  or  per- 
sons, or  of  any  body  politic,  be  from  henceforth  clearly  deemed  and  ad- 

447 


§  298.]  ESTATE    OF   THE    TRUSTEE.  [CHAP.    X. 

cutes  the  use  by  conveying  the  possession  to  the  use,  and 
transferring  the  use  into  possession,  thereby  making  the 
cestui  que  use  complete  owner  of  the  estate,  as  well  at  law  as 
in  equity.  It  does  not  abolish  the  conveyance  to  uses,  but 
only  annihilates  the  intervening  estate,  and  turns  the  interest 
of  the  cestui  que  use  into  a  legal  instead  of  an  equitable 
estate.^  A  use^  a  trust,  and  a  confidence  is  one  and  the  same 
thing,  and  if  an  estate  is  conveyed  to  one  person  for  the  use 
of,  or  upon  a  trust  for,  another,  and  nothing  more  is  said,  the 
statute  immediately  transfers  the  legal  estate  to  the  use,  and 
no  trust  is  created,  although  express  words  of  trust  are  used.^ 
So  absolute  is  the  statute  that  it  will  operate  upon  all  con- 
veyances in  the  words  above  stated,  although  it  was  the  plain 
intention  of  the  settlor  that  the  estate  should  vest  and  remain 
in  the  first  donee;  for  the  intention  of  the  citizen  cannot 
control  express  enactments  of  the  legislature,^  or  positive 
rules  of  property,  {a) 

judged  to  be  in  him  or  them,  that  have,  or  hereafter  shall  have,  such  use, 
confidence,  or  trust  after  such  quality,  manner,  form,  and  condition  as  they 
had  before,  in,  or  to  the  use,  confidence,  or  trust  that  was  in  them."  Saund. 
on  Uses,  70-82. 

1  Eustace  v.  Seamen,  Cro.  Jac.  696  ;  2  Black.  Com.  333,  338  ;  Thatcher 
V.  Omans,  3  Pick.  529  ;  Hutchins  v.  Heywood,  50  N.  H.  495. 

2  Terry  v.  Collier,  11  East,  377  ;  Right  v.  Smith,  12  East,  454 ;  Brough- 
ton  V.  Langley,  2  Salk.  679  ;  Ease  v.  Howard,  Pr.  Ch.  338,  345  ;  Hamraer- 
ston's  Case,  Dyer,  166a,  note;  Ramsay  v.  Marsh,  2  McCord,  2.52  ;  Moore 
V.  Shultz,  13  Penn.  St.  98 ;  Jackson  v.  Fish,  10  Johns.  456  ;  Parks  v.  Parks, 
9  Paige,  107. 

8  Carwardine  v.  Carwardine,  1  Eden,  36;  Gregory  v.  Hender.son,  4 
Taunt.  772.  In  this  case  the  intent  of  the  testator  was  loosely  talked  of, 
but  it  was  an  active  trust,  as  pointed  out  by  Heath,  J.     Doe  v.  Collier, 

(a)  Where  it  appeared   by  two  force  immediately  vest  the  legal  es- 

deeds  that  all  parties  intended  that  tate  in  the  beneficiary  and  his  heirs; 

the  grantee  in  each  deed  should  take  and  that  when  the  trust  so  ceased, 

the  legal  estate  in  fee  and  in  trust,  it  became  the  trustee's  duty  to  con- 

and  not  as  feoffee  or  grantee  to  uses,  vey  on  request  the  legal  estate  to 

it  was   held  that,  -when  the  active  the  beneficiary  and  his  heirs,  or  to 

duties  of  the  trust  ceased  with  the  his  assigns.     Dakin  v.  Savage,  172 

discharge    of    the    mortgage,    the  Mass.  23.     See  infra,  §  520. 
statute  of  uses  did  not  of  its  own 
448 


CHAP,    x]  STATUTE    OF    USES.  [§  299. 

§  299.  The  statute  of  uses  is  in  force  in  most  of  the  United 
States,^  but  where  the  statute  is  not  in  force  either  by  adop- 
tion or  by  re-enactment,  and  even  where  it  is  expressly  re- 
pealed and  a  form  of  deed  is  enacted,  a  knowledge  of  the 
law  of  uses  is  necessary  in  order  to  understand  and  apj)ly  the 
common  forms  of  conveyance.^  The  statute  of  uses,  and  the 
doctrines  it  established,  are  so  interwoven  with  the  history  of 
every  American  State,  and  with  the  growth  of  its  jurispru- 
dence in  regard  to  real  estate,  that  the  law  of  tenures  is 
necessarily  interpreted  in  America  by  the  precedents  estab- 
lished under  the  statute  ;3  and  in  this  branch  of  the  law,  as 
in  all  others,  it  is  impossible  to  obtain  a  clear  perception  of 
its  present  state,  w-ithout  a  full  knowledge  of  the  successive 
stei)S  by  which  the  latest  development  has  been  reached. 
The  application  of  the  statute  has  been  very  much  modified 
in  many  of  the  States,  but  the  general  idea  is  still  acted 
upon.*  (a)     Mr.  Washburn  remarks,  that  it  is  not  a  fair  in- 

11  East,  377;   Shapland  v.  Smith,  1   Bro.  Ch.  75;   1  Sugd.  Yen.  309, 
314. 

1  4  Kent,  Com.  299 ;  1  Green.  Cru.  tit.  11,  Use,  c.  3,  §  3,  note. 

2  Walk.  Am.  Law,  311;  Ilelfeu.steiue  v.  Garrard,  7  Ohio,  275;  2 
Wa.«hb.  on  Real  Prop.  152. 

3  4  Kent,  Com.  299-301. 

■*  In  Maine,  a  person  may  convey  land  by  deed  acknowledged  and  re- 
corded. Rgv.  Stat.  18.57,  c.  73,  §  1.  And  a  deed  may  be  any  species  of 
conveyance,  not  plainly  repugnant  in  terms,  and  necessary  to  give  effect 

(n)  See   IMorgan   v.    "Rogers,   79  Xumsen  r.  Lyon,  S7^fd.  31 ;  Fo.ster 

F.  R.   577;  :\Iartin  r.   Fort,  S3  id.  v.  Glover,  46  S.  C.  522;  Reeves  v. 

19;    Speed    v.    St.    Louis,    &c.     R.  Rrayton,  36    S.  C.    384;    Jliras  v. 

Co.,  86  id.  235;    Carr  v.  Richard-  Macklin   (S.   C),    30    S.    E.    585; 

son,    l.'i7    Mass.    576;    Cushing    v.  Holmes  r.   Pickett,   51    S.  C.  271; 

Spaul.liiic:,  161  id.  287;  .'^uUivan  r.  :McKei)zie  v.  Sumnor.  Ill  X.  C.  425; 

Chambers.   19  R.  I.,  799;  Bork  v.  Tliomp.son  r.  Conant.  52  Minn.  208; 

Martin.    132    N.    Y.    280;   King  v.  Woodward  v.  Stubbs,  102  Ga.  187; 

Townshend,  141  N.  Y.  3.58;  Dyett  Myers   v.  Jackson,    135   Ind.    136; 

V.  Central  Trust  Co.,  140  N.  Y.  54;  Henderson  ;-.  Adams,  15  Utah.  30  ; 

Atkins  r.   Atkins,  70  Yt    565;  Sil-  Stoup  r.  Stoup,  140  Ind.  179:  Corn- 

verman   v.  Kristufek.  162  HI.  222;  well  r.  Orton,  126  Mo.  355. 
Hooper  v.  Feigner,    ^0  Md.    262  ; 

VOL.  I.  — 29  449 


§  299.]  ESTATE    OF   THE   TRUSTEE.  [CHAP.    X. 

ference  that  the  doctrine  of  uses  would  be  inapplicable  in  any 
State  whore  they  are  not  declared  not  to  exist,  either  because 

to  the  intention  of  the  parties.  Emery  v.  Chase,  5  Maine,  235.  And  the 
statute  of  uses  is  in  force.  Shapleigh  v.  Pilsbury,  1  Maine,  271 ;  Emery 
V.  Chase,  5  id.  232  ;  Webster  v.  Cooper,  14  How.  496  ;  Morden  v.  Chase, 
32  Maine,  329. 

In  New  Hampshire,  the  form  in  which  lands  may  be  conveyed  is  fixed 
by  statute.  Rev.  Stat.  But  tiiis  does  not  exclude  other  known  forms  of 
conveyance  at  common  law,  and  the  statute  of  uses  is  in  full  force. 
Exeter  v.  Odiorue,  1  N.  H.  232 ;  Chamberlain  v.  Crane,  id.  64 ;  French 
V.  French,  3  id.  234;  Upham  v.  Varney,  15  id.  462;  Hayes  v.  Tabor, 
41  id.  526;  Bell  v.  Scammon,  15  id.  394;  Pritchard  v.  Brown,  4  id.  397; 
Dennett  v.  Dennett,  40  id.  498  ;  Hutchins  v.  Heywood,  50  id.  496. 

In  Vermont,  there  is  a  similar  legislation  as  to  the  form  of  conveyances ; 
but  Chief-Justice  Redfield  held  that  the  P2nglish  statute  of  uses  was  not 
in  force,  for  the  reason  that  their  court  of  equity  could  carry  out  the  in- 
tention of  parties  without  the  help  of  the  statute.  Gorham  v.  Daniels, 
23  Vt.  600;  Sherman  v.  Dodge,  28  id.  26.  Mr.  Justice  Thompson,  of  the 
United  States  court  for  the  district,  held  the  contrary.  Soc.  &c.  v.  Hart- 
land,  2  Paine,  C.  C.  536. 

In  Massachusetts,  a  deed  acknowledged  and  recorded  conveys  land 
without  any  other  ceremony.  Gen.  Stat.  1860,  c.  89,  §  1.  The  form  of 
deed  in  general  use  gives,  grants,  bargains,  sells,  and  conveys,  upon  a  con- 
sideration, limiting  the  estate  to  the  grantee  and  his  heirs  to  their  use. 
These  words  prevent  a  resulting  use  in  the  grantor;  and  it  is  a  convey- 
ance at  common  law,  since  the  grantee  and  the  cestui  que  use  is  the  same 
person.  But  if,  for  any  reason,  it  is  necessary,  in  order  to  give  effect  to 
the  conveyance,  to  construe  it  as  operating  under  the  statute  of  uses,  the 
court  will  do  so.  Cox  v.  Edwards,  14  ]\lass.  492 ;  Marshall  v.  Fish,  6 
Mass.  24;  Hunt  u.  Hunt,  14  Pick.  374;  Wallis  v.  Wallis,  4  Mass.  135; 
Pray  v.  Pierce,  7  Mass.  381  ;  Russell  v.  Coffin,  8  Pick.  143 ;  Blood  v. 
Blood,  id.  80;  Parker  v.  Nichols,  7  id.  Ill;  Gale  v.  Coburn,  18  id. 
397;  Brewer  v.  Hardy,  22  id.  376;  Thatcher  v.  Omans,  3  id.  522  ;  Norton 
V.  Leonard,  12  id.  157 ;  Newhall  v.  Wheeler,  7  Mass.  189  ;  Chapin  v. 
Univer.  Soc,  8  Gray,  580;  Baptist  Soc.  v.  Hazen,  100  Mass.  322;  Durant 
V.  Ritchie,  4  Mason,  45 ;  Northampton  Bank  v.  Whiting,  12  Mass.  104 ; 
Johnson  '.'.  Johnson,  7  Allen,  197. 

In  Rhode  Island,  deeds  of  bargain  and  sale,  lease  and  release,  and 
covenants  to  stand  seized,  are  recognized  by  statute.  Rev.  Stat.  (1857), 
p.  335.  And  the  statute  of  uses  would  seem  to  be  in  partial  force. 
1  Lomax,  Dig.  188  ;  Nightingale  t-.  Hidden,  7  R.  I.  132. 

In  Connecticut,  the  act  of  acknowledging  and  recording  a  deed  is  held 
equivalent  to  livery  of  seizin.  Barrett  v.  French,  1  Conn.  354.  But  the 
statute  of  uses  is  held  to  be  part  of  its  common  law.     Bacon  v.   Taylor, 

450 


CIIAT.    X.]  STATUTE   OF   USES.  [§  299. 

no  case  has  arisen  in  tlio  courts  of  the  State  to  test  the  ques- 
tion, or  because  a  form  of  deed  not  known  under  the  statute 

Kirb.  368;  Barrett  v.  French,  1  Conn.  354  ;  Hryan  v.  Bradley,  10  Conn. 
474. 

In  New  York,  previous  to  1827,  the  English  statute  of  uses  was  in  full 
force.  Jack.son  v.  Myers,  3  Johns.  388;  Jackson  v.  Fish,  10  id.  450; 
Jackson  i\  Root,  18  id.  79;  Jackson  v.  Cary,  16  id.  302  ;  Jackson  v. 
Dunsbagh,  1  Johns.  Cas.  91  ;  Jack.son  v.  Cadwell,  1  Cow.  022.  After 
that  year,  tiie  rules  of  the  common  law  were  repealed  ;  all  uses  and  trusts 
were  abolished,  except  such  as  were  expressly  authorized.  Every  interest 
in  land  is  declared  to  be  a  legal  right,  and  cognizable  in  a  court  of  law  ex- 
cept where  it  is  otherwise  provided.  A  conveyance  by  grant,  assif/nmenl, 
or  devise  is  substituted  for  a  conveyance  to  uses,  and  future  interests  in 
lands  may  be  conveyed  by  grant.  3  Rev.  Stat.  15  (5th  ed.)  ;  4  Kent,  300. 
It  has,  however,  been  determined  that  if  laud  is  granted  to  one  in  fee  in 
trust  for  another,,  the  cestui  que  trust  takes  the  estate  absolutely,  but  sub- 
ject, however,  to  such  incumbrances  as  the  trustee  made  upon  the  estate 
at  the  time  of  the  conveyance,  as  if  the  trustee  should  give  back  a  mort- 
gage for  the  purchase  money,  it  would  be  held  to  be  one  transaction.  Raw- 
son  V.  Lanipman,  1  Seld.  456.  Nor  have  these  statutes  any  application  to 
securities  by  mortgage.     King  v.  Merchants'  Exchange  Co.,  1  Seld.  547. 

In  New  Jersey,  the  statute  of  uses  is  substantially  re-enacted.  Den  v. 
Crawford,  3  Halst.  107;  Prince  v.  Sisson,  13  N.  J.  108. 

In  Pennsylvania,  a  statute  declares  all  deeds  in  a  prescribed  form 
equivalent  to  a  feoffment  with  livery  of  seizin  at  common  law.  and  the 
statute  of  uses  is  also  in  full  force.  Opinion  of  the  Judges,  3  Binn.  599  ; 
Welt  V.  Franklin,  1  Binn.  502;  Ashhurst  v.  Given,  5  Wat.  &  S.  323; 
Sprague  v.  Woods,  4  id.  192;  O'Kinson  v.  Patterson,  1  id.  395:  Hurst 
V.  McNeil,  1  Wash.  C.  C.  70;  Franciscus  v.  Reigart,  4  Watts,  118.  In- 
deed, at  one  time  the  Pennsylvania  courts  carried  the  application  of  the 
statute  to  an  unusual  extent,  and  held  that  et/uitahle  were  converted  into 
legal  estates  in  all  cases  except  active  trusts,  and  even  then  if  the  purposes 
of  the  trust  did  not  furnish  a  legitimate  reason  for  not  executing  the  trust 
in  the  beneficiary.  Kuhn  w.  Newman,  26  Penn.  St.  227;  Whichcote  v. 
Lyle,  28  id.  73  ;  Bush's  App.,  33  id.  85  ;  Kay  v.  Scates,  37  id.  31.  Rut 
these  cases  were  overruled,  and  the  law  restored  to  its  former  condition, 
in  Barnett's  App.,  46  Penn.  St.  392  ;  Shankland's  App.,  47  id.  113  ;  Earp's 
App.,  75  id.  119;  Deibert's  App.,  78  id.  296. 

In  Delaware,  the  statute  provides  that  lands  may  be  transferred  by 
deed  without  livery,  and  that  the  legal  estate  shall  accompany  the  use, 
and  pass  with  it.     Rev.  Code  (1852),  p.  206. 

In  ^Maryland,  the  English  statute  of  uses  is  the  foundation  of  their 
conveyances,  and  their  rules  of  construction  of  it  are  nearly  similar  to  the 
English  rules.     Lewis   v.  Beall,  4  Ilarr.   &  McH.  488 ;    Mason  u.  Small- 

451 


§  299.]  ESTATE   OF  THE  TRUSTEE.  [CHAP.   X. 

of  uses  may  have  been  declared  by  the  statute  of  a  State  suffi- 
cient to  convey  lands. ^     It  is  true  that  Lord  Hard wi eke  is 

wood,  id.  484  ;  Matthews  v.  Ward,  10  Gill  &  J.  443;  Cheney  v.  Watkins, 
1  Harr.  &  J.  527;  West  v.  Biscoe,  6  id.  465;  Calvert  v.  Eden,  2  ILirr.  & 
McII.  3;]1. 

In  Virginia,  the  statute  of  uses  was  a  part  of  the  colonial  law;  but  it 
was  repealed  in  1792.  Afterwards,  in  1819,  and  in  Rev.  Code  (1849), 
p.  502,  a  partial  substitute  was  adopted,  by  which  the  possession  was 
transferred  to  the  use  only  in  cases  of  deeds  of  bargain  and  sale,  lease  and 
release,  and  deeds  operating  by  way  of  covenant  to  stand  seized  to  uses. 
If  uses  or  trusts  are  raised  by  any  other  form  of  conveyance,  as  by  devise, 
they  remain,  as  before  the  statute  of  Henry  VIII.,  mere  equitable  estates, 
not  cognizable  by  courts  of  law.  Bass  v.  Scott,  2  Leigh,  359;  1  Lomax, 
Dig.  188;  2  Matt.  Dig.  34;  Rowletts  v.  Daniel,  4  Munf.  473  ;  Tabb  v. 
Baird,  3  Call,  475;  Duvall  v.  Bibb,  id.  362. 

In  North  Carolina,  the  statute  is  similar  to  the  statute  of  Virginia,  and 
the  statute  of  uses  has  nearly  the  same  application.  Rev.  Code  (1854), 
p.  270;  Den  v.  Hanks,  5  Ired.  30;  Smith  v.  Lockabill,  76  N.  C.  46.5. 

In  South  Carolina,  the  statute  of  uses  was  re-enacted  in  terms.  2  Stat. 
at  Large,  p.  467  ;  Ramsay  v.  Marsh,  2  McCord,  252  ;  Redfern  v.  Middle- 
ton,  Rice,  464;  Kinsler  v.  Clark,  1  Rich.  170;  Chancellor  v.  Windham, 
id.  161  ;  Laurens  v.  Jenney,  1  Spears,  356  ;  McNish  v.  Guerard,  4 
Strob.  74. 

In  Georgia,  the  form  of  deed  in  general  use  is  that  of  bargain  and 
sale,  which  operates  under  the  statute  of  uses.  Adams  v.  Guerard,  29 
Ga.  676. 

In  Florida,  there  is  a  statute  similar  to  the  statute  of  Virginia,  and 
the  statute  of  uses  is  in  partial  force.  Thompson's  Dig.,  p.  178,  §  4  ;  1 
Lomax,  Dig.  188. 

In  Alabama,  the  statute  of  uses  is  part  of  the  law  of  the  State.  Ilorton 
V.  Sledge,  29  Ala.  478;  You  v.  Flinn,  34  Ala.  411. 

In  Mississippi,  there  is  a  statute  similar  to  the  statute  of  Virginia. 
How.  &  Hutch.  Dig.  p.  349. 

In  Louisiana,  conveyances  originated  under  the  civil  law,  or  the  code 
of  France. 

In  Texas,  a  statute  recognizes  deeds  of  bargain  and  sale,  which  operate 
under  the  statute  of  uses. 

In  Arkansas,  the  mode  of  conveyance  is  by  deeds  of  bargain  and  sale, 
and  of  course  the  statute  of  uses  must  be  a  part  of  their  law. 

In  Tennessee,  the  statute  of  uses  is  not  in  force,  though  deeds  good  at 
common  law  or  under  the  statute  of  uses  are  valid  to  convey  estates ;  but 
if  uses  are  raised,  they  remain  as  before  the  statute  of  Henry  VIII. 

The  statute  of  Kentucky  is  in  nearly  the  same  words  as  the  statute  of 


*  2  Washburn  on  Real  Property,  154. 

452 


CHAP.  X.]  STATUTE  OF  USES.  [§  299. 

reported  to  have  said,  that  the  statute  of  uses  had  no  other 
effect  than  to  add  at  most  three  words  to  a  conveyance ;  * 
Mr.  Kent  thinks  this  rather  too  stronj^ly  expressed,  and  says 
that  the  doctrine  of  the  statute  has  insinuated  itself  deeply 
and  thoroughly  into  every  branch  of  the  jurisprudence  of  real 
property. 2  It  seems  to  have  been  the  intention  of  the  stat- 
utes of  the  various  States  to  supply  the  want  of  livery  of 
seizin,  and  to  make  all  deeds,  or  other  writings  executed 
with  certain  formalities,  equivalent  to  the  old  feoffments; 
therefore,  any  old  and  well-established  rule  of  conveyancing 

Virginia,  and  the  statute  of  uses  has  the  same  application.  Rev.  Stat, 
p.  279  (ed.  18G0). 

In  Ohio,  the  statute  of  uses  was  never  in  force,  and  if  trusts  or  uses 
are  raised  by  the  form  of  conveyance  they  remain  unexecuted,  and  mere 
equitable  estates,  cognizable  only  in  courts  of  equity.  Williams  r.  Pres- 
byterian Church,  1  Ohio  St.  497;  lielfensteine  r.  Garrard,  7  Ham.  276; 
Foster  v.  Denuison,  9  Ohio,  121;  Walker,  Am.  Law,  124;  Thompson  v. 
Gibson,  2  Ohio,  4:59. 

In  Indiana,  the  statute  of  uses  is  enacted  in  substance.  Rev.  Stat. 
(1843)  p.  447;  Linville  u.  Golding,  11  Ind.  374;  Nelson  v.  Davis,  35 
Ind.  474. 

In  Illinois,  the  statute  is  very  similar  to  the  statute  of  Virginia.  2  Stat. 
(1858)  p.  959;  Witham  v.  Brooner,  G3  111.  344. 

In  Michigan,  the  laws  are  similar  to  the  statutes  of  New  York,  by 
which  all  uses  and  trusts  are  abolished.  2  Compt.  Laws  (1857),  p.  824  ; 
Ready  r.  Kearsley,  14  Mich.  228. 

In  Mis.souri,  the  statute  of  uses  is  re-enacted  in  substance.  Rev.  Stat. 
(184.'.)  p.  218;  Guest  v.  Farley,  19  Miss.  147. 

In  Iowa,  uses  are  recognized,  and  deeds  may  operate  under  the  statute 
of  uses.     Pierson  v.  Armstrong,  1  Iowa,  282. 

In  Wisconsin,  the  statute  is  very  similar  to  the  statute  of  New  York, 
and  all  uses  and  trusts  are  abolished  except  those  specially  provided  for. 
Rev.  Stat.  (18.J8)  p.  .529. 

In  Minnesota,  deeds  may  be  in  form  of  bargain  and  sale,  which  oper- 
ate \nider  the  statute. 

In  California,  conveyances  originated  under  the  old  Spanish  law,  and 
probably  the  statute  of  uses  has  little  or  no  influence  upon  tlie  law  of  tlie 
State 

In  Kansas,  a  conveyance  to  A.  to  the  u.se  of  li.  vests  the  estate  at  once 
in  B.,  by  force  of  the  statute.     Bayer  c.  Cockerill,  '•)  Kan.  292. 

1  Hopkins  r.  Hopkins,  1  Atk.  591. 

2  4  Kent,  Com.  301. 

453 


§  300.]  ESTATE    OF   THE    TRUSTEE.  [CIIAP.    X. 

ought  not  to  be  considered  as  abolished,  in  the  absence  of 
express  provisions  to  that  effect. 

§  300.  The  statute  of  uses  at  the  time  when  it  was  passed 
had  an  immense  effect  upon  the  tenures  of  the  realm.  Many 
interests  in  land  which  had  been  merely  equitable,  and 
cognizable  only  according  to  the  rules  of  equity,  became  at 
once  legal  interests,  cognizable  in  courts  of  common  law. 
Many  persons  who  were  seized  of  estates  to  uses,  and  who 
only  could  sue  or  be  sued  at  law  in  relation  to  the  same, 
ceased  at  once  to  have  any  title  either  at  law  or  equity.  Al- 
though it  is  probable  that  it  was  the  intent  of  the  statute  to 
convert  all  uses  or  trusts  into  legal  estates,^  yet  the  conven- 
ience to  the  subject  of  being  able  to  keep  the  legal  title  to  an 
estate  in  one  person,  while  the  beneficial  interest  should  be 
in  another,  was  too  great  to  be  given  up  altogether,  and 
courts  of  equity  were  astute  in  finding  reasons  to  withdraw  a 
conveyance  from  the  operation  of  the  statute. ^  Three  prin- 
cipal reasons  or  rules  of  construction  were  laid  down,  where- 
by conveyances  were  excepted  from  such  operation:  first, 
where  a  use  was  limited  upon  a  use;  second,  where  a  copy- 
hold or  leasehold  estate,  or  personal  property,  was  limited  to 
uses ;  third,  where  such  powers  or  duties  were  imposed  with 
the  estate  upon  a  donee  to  uses  that  it  was  necessary  that  he 
should  continue  to  hold  the  legal  title  in  order  to  perform 
his  duty  or  execute  the  power. ^     In  all  of  these  three  in- 

1  1  Green.  Cruise,  tit.  12,  c.  1,  §  1. 

2  Mr.  Cruise  thought  that  the  .strict  construction  put  upon  the  .statute 
by  the  judges  in  a  great  measure  defeated  its  effect.  Id.  Mr.  Blackstone 
is  of  a  similar  opinion.  2  Black.  Com.  336.  And  Lord  Mansfield,  in 
Goodright  v.  Wells,  2  Doug.  771,  said  that  it  was  not  the  liberality  of 
courts  of  equity,  but  the  absurd  narrowness  of  courts  of  law,  resting  on 
literal  distinctions,  which  in  a  manner  repealed  the  statute  of  uses,  and 
drove  cestuis  que  trust  into  equity. 

3  Hill  on  Trustees,  230.  See  §  785,  a;  Farr  v.  Gilreath,  23  S.  C.  511  ; 
Preachers'  Aid  Society  v.  England,  106  111.  129  (referring  to  the  text). 
Where  an  estate  is  conveyed  to  A.  for  the  use  of  B.,  and  nothing  more  is 
said,  the  title  is  immediately  vested  in  B.  by  the  statute,  even  though  ex- 
press words  of  trust  are  used;  but  if  certain  duties  are  imposed  on  A., 
such  as  collection  of  rents,  making  investments,  &c.,  which  require  that 

454 


ClIAI'.    X.]  CON  «TK  I  CI  ION    OF    THK   STATUTE.  [§  -jOl- 

stances,  courts  both  of  law  and  equity  held  that  the  statute 
did  not  execute  the  use,  but  that  such  use  remained,  as  it 
was  before  the  statute,  a  mere  eiiuitable  interest  to  be  admin- 
istered in  a  court  of  equity.  These  uses,  which  the  statute 
did  nut  execute,  were  called  trusts,  and  justify  Mr.  Cruise's 
language  that  "a  trust  is  a  use  not  executt'd  by  the  statute 
of  27  Henry  Vlll."  Tlie  statute  may  execute  the  usu  in 
regard  to  one  party  and  not  as  to  another  in  the  same  deed ; 
for  example,  where  land  is  conveyed  to  A.  in  trust  fur  B.  for 
life,  contingent  remainder  to  C,  the  statute  may  execute  the 
life  estate  in  B.,  and  still  leave  the  fee  in  A.  for  the  preser- 
vation of  the  remainder.^ 

§  301.  The  first  two  of  these  rules  originated  in  a  strict 
construction  of  the  technical  words  used  in  the  statute,  which 
are,  "  where  any  person  is  seized  of  any  lands  or  to  the  use 
of  another."  If  A.  grants  lands  to  B.  for  the  use  of  C.  for 
the  use  of  D.,  B.  was  said  to  be  "seized  "  of  the  lands  to  the 
use  of  C.  ;  and  the  statute  immediately  executed  the  use  in 

C.  and  gave  him  the  legal  title.  But  C.  was  said  not  to  be 
"seized  "  of  lands  to  the  use  of  D.,  but  only  of  a  use;  there- 
fore the  use  in  C.  for  D.  remained,  as  it  was  before  the  stat- 
ute, unexecuted. 2  It  remained,  therefore,  a  mere  equitable 
estate  or  trust  cognizable  in  a  court  of  equity  alone.  Hence 
the  maxim  that  a  use  could  not  be  limited  on  a  use ;  not  that 
such  second  use  was  void,  but  the  statute  did  not  execute  it, 
and  it  remained  a  mere  equitable  interest.  Thus,  if  lands 
come  to  A.  and  his  heirs  by  fooffmont,  grant,  devise,  or  other 
assurance,  to  the  use  of  B.  and  his  heirs,  to  the  use  of  C.  and 
his  heirs;  or  to  the  use  of  C.  in  fee  or  for  life,  with  remain- 
ders over;  or  to  B.  and  his  heirs  in  trust  to  permit  C.  and 

D.  to  receive  the  rents,  —  in  all  these  cases  the  statute  exe- 

he  should  keep  the  estate,  the  trust  will  be  an  active  one,  and  the  statute 
•will  not  execute  it.  Kellogfj  v.  Hale,  lOS  111.  164;  Howard  r.  Ilender.son, 
18  S.  C.  189;  Hooberry  v.  Harding,  10  Lea  (Tenn.)  :}n2 ;  Henderson  r. 
Hill.  9  Lea  (Tenn.),  2."). 

1  Howard  v.  Henderson,  18  S.  C.  192  ;  Willimau  v.  Holmes,  4  Rich.  Eq. 
(S.  C.)  476. 

2  Tyrrell's  Case,  Dyer,  MS  a. 

455 


§  302.]  ESTATE    OF   THE   TRUSTEE.  [CHAP.    X. 

cutes  the  first  use  only  in  B.  and  his  heirs,  and  the  legal 
estate  is  vested  in  him,  as  trustee  tor  the  parties  beneficially 
interested.  ^ 

§  302.  So  where  lands  are  conveyed  by  covenant  to  stand 
seized,  or  by  bargain  and  sale,  or  by  appointment  under  a 
power,  to  A.  and  his  heirs,  to  the  use  of  B.  and  his  heirs, 
the  legal  estate  will  vest  in  A.,  and  B.  will  take  only  an 
equitable  interest;  for  these  conveyances  do  not  operate  to 
transfer  the  seizin  to  A.^  They  merely  raise  a  use  which 
the  statute  executes  in  him,  and  stops  there.  Thus,  in  a 
deed  of  bargain  and  sale,  the  operation  is  as  follows:  the 
consideration  and  the  bargain  raise  a  use  in  the  bargainee 
which  the  statute  executes ;  and  thus,  under  a  deed  of  bar- 
gain and  sale,  the  bargainee  obtains  both  the  use  and  the 
legal  title.     But  no  use  can  be  limited  and  executed  on  a  use. 

1  Duraut  v.  Ritchie,  4  Mason,  65;  Hurst  v.  McNeil,  1  Wash.  C.  C.  70; 
Hutchins  v.  Heywood,  50  N.  H.  496  ;  Croxall  v.  Sherard,  5  Wall.  268 ; 
Reed  v.  Gordon,  35  Md.  183 ;  Cueman  v.  Broadnax,  37  N.  J.  Eq.  523 ; 
Matthews  v.  Ward,  10  G.  &  J.  443;  Whetstone  v.  Bury.  2  P.  Wms.  146; 
WagstaS  V.  Wagstaff,  id.  258;  Att.  Gen.  v.  Scott,  Forrest,  138;  Doe  v. 
Passingham,  6  B.  &  Cr.  305;  Jones  v.  Lord  Saye  &  Sele,  1  Eq.  Cas.  Ab. 
383  ;  Marwood  v.  Darell,  Ca.  t.  Hard.  91;  Hopkins  v.  Hopkins,  1  Atk. 
581;  Jones  v.  Bush,  4  Harr.  1;  1  Sand.  Uses,  195;  2  Black.  Com.  336; 
Williams  v.  Waters,  14  M.  &  W.  166 ;  Ramsay  v.  Marsh,  2  .AlcCord,  252 ; 
Burgess  v.  Wheate,  1  W.  Black.  160  ;  Wilson  r.  Cheshire,  1  McCord,  233. 
The  statute  of  uses  in  some  of  the  States,  as  Virginia,  speaks  of  uses 
raised  by  deed.  Consequently,  it  is  said  that  uses  raised  by  devise  are  not 
executed,  but  remain  trusts.  Judge  Lomax,  however,  denies  this  con- 
struction. 1  Lomax,  Dig.  188,  196.  In  New  York,  the  uses  named  in 
the  text  would  be  executed  in  the  cestui  que  use  by  the  statute  of  uses  and 
trusts,  and  he  would  have  the  entire  legal  title. 

2  .Johnson  v.  Gary,  16  .Johns.  304  ;  1  Cruise,  Dig.  tit.  12,  c.  1,  §  9  ;  Gilb. 
on  Uses,  67,  347.  Mr.  Blackstone  condemned  this  rule.  2  Black.  Com. 
336.  And  Lord  Mansfield  said  that  the  rule  grew  up  from  the  absurd 
narrowness  of  courts  of  common  law.  Goodright  v.  Wells,  2  Doug.  771. 
And  Mr.  Greenleaf  doubts  if  the  rule  that  a  use  cannot  be  limited  upon  a 
use  would  be  generally  acted  upon  in  the  United  States,  especially  in  those 
States  which  have  declared  by  statute  what  formalities  shall  alone  be 
necessary  to  pass  estates.  Green.  Cruise,  Dig.  tit.  12,  c.  1,  §  4,  n.  (vol.  i. 
p.  380)  ;  and  see  Davis  v.  Hayden,  9  Mass.  514 ;  Flint  v.  Sheldon,  13  Mass. 
443  ;  Marshall  v.  Fisk,  6  Mass.  24. 

456 


CHAP.    X.]  CONSTUUCTIOX    OF   TIIK    STATUTE.  [§  303. 

Hence,  if  A.  conveys  hind  to  B.,  to  the  use  of  C,  In'  a  deed 
of  bargain  and  sale,  the  statute  will  not  execute  the  use  in 
C,  but  the  legal  title  will  renuiin  in  B.  subject  to  a  trust  for 
C,  to  be  administered  in  equity;  for  the  consideration  and 
bargain  only  raise  a  use  in  B.,  which  the  statute  executes, 
but  the  use  in  B.  for  C.  is  in  the  nature  of  a  use  limited  upon 
a  use,  which  the  statute  docs  not  execute.^ 

§  303.  Another  technical  construction  of  the  word 
"seized"  withdrew  all  uses  or  trusts  created  in  copyhold  or 
leasehold  estates,  and  all  chattel  interests  and  personal  prop- 
erty, from  the  operation  of  the  statute.  The  judges  resolved 
in  the  22d  of  Elizabeth  that  the  word  "seized"  was  only 
applicable  to  freeholds;  consequently  no  one  could  be  said  to 
be  "seized"  of  a  leasehold  or  other  chattel  interests  in  real 
estate,  or  of  personal  pro[)crty.  Therefore,  if  A.  gave  lease 
holds  or  personal  property  to  B.  for  the  use  of  C,  the  statute 
did  not  execute  the  use,  but  B.  took  the  legal  title  in  trust 
for  C,  w'hich  trust  was  not  recognized  at  law,  but  only  in 
equity.2     So  tenants  by  curtesy  or  in  dower   cannot   stand 

1  The  question  has  been  raised  in  ^Massachusetts  whether  land  can  be 
conveyed  by  deed  of  bargain  and  sale  to  one  for  the  use  of  another,  and 
create  anything  more  than  a  trnst  for  the  last  beneficiary.  Stearns  v. 
Palmer,  10  Met.  32  ;  Norton  v.  Leonard,  12  Pick.  152.  The  general  doc- 
trine stated  in  the  text  is  fully  admitted,  but  it  is  claimed  iu  answer  that 
the  deeds  in  general  use,  although  in  the  general  form  of  deeds  of  bar- 
gain and  sale,  are  in  fact,  by  force  of  the  statutes,  equivalent  to  grants  or 
feoffments,  and  it  is  said  that  if  deeds  will  not  operate  in  the  form  in 
■which  tlipy  are  drawn,  they  shall  be  construed  to  operate  according  to 
the  intention  of  the  parties.  Higbee  v.  Kice,  5  Mass.  352  ;  Pray  v.  Peirce, 
7  :Mass.  381 ;  Knox  v.  Jenks,  id.  4!)4  ;  Russell  v.  Coffin,  8  Pick.  143.  The 
question  was  left  undecided  in  Norton  v.  Leonard  and  Stearns  v.  Palmer, 
ut  supra,  but  see  the  remarks  of  Chief  Justice  Dana,  in  Thatcher  v.  Omans, 
3  Pick.  5_'3.  The  same  question  may  arise  in  other  States,  where  their 
deeds  are  in  form  deeds  of  bargain  and  sale. 

2  Ante,  §  G;  Dyer,  3G9  a;  Doe  v.  Routledge,  2  Cowp.  709;  Sympson 
V.  Turner,  1  Eq.  Ab.  383;  2  Wooddes.  Lect.  pp.  295,  297;  1  Cruise,  Dig. 
p.  354,  and  tit.  12,  c.  1;  Gilb.  Ten.  182;  Gilb.  Uses,  67  n.  ;  Rice  v.  Bur- 
nett, 1  Spear,  Eq.  579  ;  Joor  v.  Ilodges,  Spear,  593 ;  Pyron  v.  Mood,  2 
McMuUan,  293.  In  some  Slates,  the  statutes  use  the  word  "  po.ssessed  "  in- 
stead of  the  word  "  seized,"  in  which  case  both  real  and  personal  estate  and 

457 


§  305.]  ESTATE    OF   THE    TRUSTEE.  [CHAP.    X. 

seized  to  a  use,  for  they  are  in  by  act  of  law  in  consideration 
of  marriage  and  not  in  privity  of  estate;  but  in  equity  they 
would  be  held  to  execute  any  trusts  charged  upon  their  inter- 
ests or  estates.^ 

§  304.  From  these  instances,  it  will  be  seen  that,  in  order 
to  create  a  trust,  it  is  necessary  to  prevent  the  legal  estate 
from  vesting  in  the  cestui  que  trust,  and  it  is  necessary  that 
not  only  the  legal  title,  but  the  primary  use,  should  vest  in 
the  trustee.  Any  form  of  conveyancing  that  will  effect  this, 
notwithstanding  the  statute,  will  create  a  trust;  as  if  a  grant 
or  devise  be  made  to  a  trustee  and  his  heirs,  to  the  use  of  the 
trustee  and  his  heirs,  or  unto  and  to  the  use  of  the  trustee 
and  his  heirs,  the  title  and  the  primary  use  will  both  be 
vested  in  the  trustee ;  and  although  there  is  a  trust  or  use 
over  to  some  other  person,  yet  it  will  not  be  effected  by  the 
statute,  it  not  being  the  primary  use.^ 

§  305,  The  third  rule  of  construction  is  less  technical,  and 
relates  to  special  or  active  trusts,  which  were  never  within 
the  purview  of  the  statute.^  Therefore  if  any  agency,  duty, 
or  power  be  imposed  on  the  trustee,  as  by  a  limitation  to 
a  trustee  and  his  heirs  to  pay  the  rents,*  or  to  convey  the 

chattel  interests  would  be  transferred  to  the  uses  raised.  Tabb  v.  Baird, 
3  Call,  482.  But  this  construction  is  controverted  by  Judge  Lomax.  1 
Lomax,  Dig.  190. 

^  1  Saunders  on  Uses,  86;  2  Foubl.  Eq.  book  2,  c.  6,  §  1,  and  notes, 
p.  140. 

2  Rackham  v.  Siddall,  1  :\Iac.  &  G.  607 ;  Doe  v.  Passingham,  6  B.  &  C. 
305;  Robinson  v.  Comyns,  t.  Talb.  154;  Doe  v.  Field,  6  B.  &  Ad.  564; 
Att.  Gen.  v.  Scott,  t.  Talb.  1-38;  Hopkins  v.  Hopkins,!  Atk.  589;  Harris 
V.  Pugh,  12  Moore,  577;  4  Bingh.  335;  Prise  v.  Sisson,  2  Beas.  168; 
Eckels  y.  Stewart,  33  Penn.  St.  400;  Freyvogle  v.  Plughes,  56  id.  228; 
Dodson  V.  Ball,  60  id.  492  ;  McMullin  v.  Beatty,  56  id.  387  ;  Keyser's 
App.,  57  id  636;  Koenig's  App.,  id.  352;  Bacon's  App.,  id.  504;  Good- 
rich r.  Milwaukee,  24  Wis.  422. 

3  Chapin  v.  Universalist  Soc,  8  Gray,  580;  Exeter  i;.  Odiorne,  1  X.  H. 
232;  Mott  v.  Buxton,  7  Ves.  201;  Wright  v.  Pearson,  1  Edw.  125; 
Wheeler  v.  Newhall,  7  Mass.  189;  Norton  v.  Leonard,  12  Pick.  152; 
Striker  v.  Mott,  2  Paige,  387 ;  Wood  v.  Wood,  5  id.  596. 

4  Robinson  v.  Grey,  9  East,  1 ;  Jones  v.  Saye  &  Sele,  1  Eq.  Cas.  Ab. 

458 


CHAP.  X.]    A  TRUST  MUST  NOT  BE  EXECUTED  BY  STATUTE.  [§   305. 

estate,^  or  if  any  control  is  to  bo  exercised,  or  duty  performed 
by  the  trustee  in  applybuj  the  rents  to  a  person's  niainte- 
.nance,2  or  in  maiving  repairs,^  or  to  preserve  contingent  re- 
mainders,* or  to  raise  a  sum  of  money, ^  or  to  dispose  of  the 
estate  by  sale,® —  in  all  these,  and  in  other  and  like  casts, 
the  operation  of  the  statute  is  excluded,  and  the  trusts  or 
uses  remain  mere  ecpiitable  estates.  So  if  the  trustee  is  to 
exercise  any  discretion  in  the  management  of  the  estate,  in 
the  investment  of  the  proceeds  or  the  principal,  or  in  the 
application  of  the  income;'  or  if  the  purpose  of  the  trust  is 
to  protect  the  estate  for  a  given  time,  or  until  the  death  of 
some  one,  or  until  division,^ (*<)  or  until  a  rc(iucst  for  a  con- 

383 ;  Barker  v.  Greenwood,  4  i\I.  &  W.  429  ;  Sympson  v.  Turner,  1  Eq. 
Cas.  Ab.  383;  Chapman  v.  Blissett,  Cas.  t.  Talb.  145;  Garth  v.  Baldwin, 
2  Ves.  610;  Sherwin  v.  Kenny,  IG  Ir.  Ch.  138;  Anthony  v.  Kees,  2  Cr.  & 
Jer.  To;  Doer.  Ilampray,  G  Ad.  &  El.  20G;  White  v.  Barker,  1  Bing. 
N.  C.  573,  Kenrick  v.  Beauclerk,  3  Bos.  &  P.  178;  Neville  v.  Saunders, 
1  Vera.  415.  See  the  elaborate  case,  Leggett  v.  Perkins,  2  Comst.  297  ; 
Brewster  v.  Striker,  id.  19  ;  Morton  v.  Barrett,  22  Maine.  261  ;  McCosker 
V.  Brady,  1  Barb.  Ch.  329;  Doe  v.  Biggs,  2  Taunt.  109;  Wickhani  t;. 
Berry,  53  Penii.  St.  70  ;  jNIanice  v.  Manice,  43  N.  Y.  203;  Adams  i-.  Perry, 
id.  487;  ilutchins  v.  Ileywood,  50  N.  II.  500;  Barnelt's  App.,  46  Penn. 
St.  392;  Shankland's  App.,  47  id.  113;  Ogden's  App.,  70  id.  501  ;  Dei- 
bert's  App.,  78  id.  29G  ;  Mecehani  v.  Steele,  93  111.  13.j. 

1  Ibid  ;  Doe  w.  Edlin,  4  Ad.  &  El.  582;  Doe  v.  Scott,  4  Bing.  505; 
Mott  r.  Buxton,  7  Ves.  201. 

2  Sylvester  v.  Wilson,  2  T.  R.  411;  Doe  i-.  Edlin,  4  Ad.  &  El.  582; 
Vail  V.  Vail,  4  Paige,  317;  Porter  v.  Doby,  2  Rich.  Eq.  52  ;  Doe  v.  Iron- 
monger, 3  East,  533 ;  Gerard  Ins.  Co.  c.  Chambers,  40  Penn.  St.  485. 

2  Shaplaud  y.  Smith,  1  Bro.  Ch.  75;  Brown  v.  Ramsden,  3  Moore, 
612;  'I'ierney  v.  Moody,  3  Bing.  3. 

^  Biscoe  V.  Perkins,  1  Ves.  &  B.  485;  Barker  v.  Greenwood,  4  M.  &  W. 
431  ;  Vanderheyden  v.  Crandall,  2  Denio,  9. 

*  AVriglit  V.  Pearson,  1  Eden,  119  ;  Stanley  v.  Lcnnard.  id.  87. 

c  Bagshaw  v.  Spencer,  1  Ves.  142 ;  Wood  v.  Mather,  3S  Barb.  473. 

■^  Exeter  v.  Odiorne,  1  N.  II.  232;  A.shhurst  i\  Given,  5  W.  &  S.  323; 
Vaux  V.  Parke,  7  W.  &  S.  19;  Nickell  i-.  Ilandly,  10  Grat.  336. 

8  Posey  V.  Cook,  1  Hill  (S.  C),  413;  IMorton  v.  Barn-tt.  22  Me.  261 ; 
Wood  V.  Mather,  38  Barb.  473  ;  McCaw  v.  Galbraith,  7  Rich.  L.  74 ;  Wil- 

(a)  See  Hart  I'.  Bayliss,  97Tenn.  to  the  exercise  of  the  discretionary 
72.     Title  in  the  trustee  is  essential    power  to  withhold  or  give  an  estate. 

459 


§  306.]  ESTATE   OF   THE    TRUSTEE.  [CHAP.    X. 

veyance  is  made.^  So  if  an  estate  is  given  upon  a  trust  to 
sell  or  mortgage  for  the  payment  of  debts,  legacies,  or  annu- 
ities, or  to  purchase  other  lands  to  be  settled  to  certain  uses ;  ^ 
and  this  construction  will  not  be  affected  b}'  a  power  given  to 
one  of  the  cestuis  que  trust  to  control  the  sale  of  part  of  the 
estate,^  nor  by  the  fact  that  the  direction  for  the  payment  of 
debts  and  legacies,  out  of  the  proceeds  of  the  sale  of  the  land, 
is  only  in  aid  of  the  personal  property.'* 

§  306.    If,  however,  the  trust  simply  is  to  permit  and  suffer 

A.  to  occupy  the  estate,  or  to  receive  the  rents,  the  legal 
estate  is  executed  in  A.  by  the  statute.^  And  a  trust  to  hold 
for  the  use  and  benefit  of,  and  to  apply  the  rents  to,  the 
children  of  A.,  is  executed  in  the  children,  notwithstanding 
the  word  "apply  "  is  used.^  But  where  the  trust  is  '■'■  to  pay 
unto  "  or  to  permit  and  suffer  a  person  to  receive  the  rents, 
using  both  expressions,  the  construction  will  be  governed  by 
the  intention  of  the  donor ;  and  in  this  view  the  position  of 

liams  V.  McConico,  36  Ala.  22  ;  Nelson  v.  Davis,  35  Ind.  474 ;  McXish  v. 
Guerard,  4  Strob.  Eq.  66,  was  to  the  contrary  upon  the  facts  of  that  par- 
ticular case. 

1  Walter  v.  Walter,  48  Mo.  140. 

2  Curtis  V.  Price,  12  Ves.  89;  Doe  v.  Ewart,  7  Ad.  &  El.  636,  668; 
Ashhurst  v.  Given,  5  W.  &  S.  323;  Vaux  v.  Parke,  7  W.  &  S.  19  ;  Keene 
V.  Deardon,  8  East,  248;  Bagshaw  v.  Spencer,  1  Ves.  142;  Chamberlain 
V.  Thompson,  10  Conn.  244;  Sanford  v.  Irby,  3  B.  &  Al.  654;  Creaton  v. 
Creaton,  3  Sm.  &  Gif.  386;  Spence  v.  Spence,  12  C.  B.  (n.  s.)  199;  Smith 
V.  Smith,  11  C.  B.  (n.  s.)  121. 

8  Chapman  v.  Blissett,  Forr.  145;  Naylor  v.  Arnitt,  1  R.  &  M.  501; 
Wykhaiu  v.  Wykham,  18  Ves.  395. 

*  Ibid.  ;  Murthwaite  v.  Jenkinson,  2  B.  &  Cr.  2.37. 

5  Right  V.  Smith,  12  East,  455;  Wagstaff  v.  Smith.  9  Ves.  524;  Greg- 
ory f.  Henderson,  4  Taunt.  773;  Warter  v.  Hutchinson,  5  Moore,  143;  1 

B.  &  C.  721 ;  Barker  v.  Greenwood,  4  M.  &  W.  429;  Boughton  v.  Langley, 
1  Eq.  Cas.  Ab.  383 ;  2  Salk.  679  (overruling  Burchett  r.  Durdant,  2  Vent. 
311)  ;  Doe  ;;.  Biggs,  2  Taunt.  109  ;  Ramsay  v.  Marsh,  2  :\IcCord,  252  ; 
Parks  V.  Parks,  9  Paige,  107  ;  Witham  v.  Brooner,  63  111.  158. 

^  Laurens  v.  Jenney,  1  Spears,  356. 

Marshall's  Estate,  147  Penn.  St.  77;    v.  Prior,  16  R.  1.  566;  In  re  Dolan, 
Kreb's  Estate,  184  id.  222;  see  Fish    79  Cal.  65. 
460 


CHAP.  X.]  WHEN  A  TRUST  IS  NOT  EXECUTED  BY  STATUTE.  [§  308. 

the  words  in  the  sentence,  and  the  jn-iority  of  tlie  words,  and 
the  consideration  whether  tiie  instrument  is  a  deed  or  will, 
will  have  a  material  bearing  iii^m  the  decision.^  Mv.  Jar- 
man  and  Mr.  Lewin  suggest  that  the  rejtugnancy  would  be 
obviated  in  such  a  case  by  construing  the  instrument  to  give 
an  election  or  discretion  to  the  trustees.^ 

§  307.  Althongh  the  direction  may  be  for  the  trustees  to 
permit  and  suffer  another  person  to  receive  the  rents,  yet  if 
any  duty  is  imposed  upon  the  trustees  expressly  or  by  impli- 
cation, the  legal  estate  will  remain  in  them  unaffected  by  the 
statute.  As  if  the  direction  is  to  peryiiit  A.  to  receive  the 
net  ^  rents,  or  the  clear  ^  rents,  the  trustees  take  the  legal 
estate,  the  words  7ict  and  clear  implying  that  the  trustees  are 
to  pay  all  charges,  and  ])ay  over  the  balance.  So  if,  in  addi- 
tion to  a  devise  in  trust  to  preserve  contingent  remainders, 
there  is  a  direction  to  permit  A.  to  receive  the  rents  and 
profits;^  and  so  if  trustees  are  to  pay  certain  life  annuities 
out  of  the  rents,  and  subject  to  those  annuities  to  permit  and 
su^er  certain  persons  to  receive  the  rents  and  profits.^  So  if 
the  trustees  are  to  exercise  any  control,"  as  if  there  is  a  trust 
to  permit  and  suffer  a  woman  to  receive  the  rents,  and  that 
her  receipts  with  the  approbation  of  one  of  the  trustees  should 
be  good.  8 

§  308.    A  mere  charge  of  debts  and  legacies  on  real  estate 

will  not  vest  the  estate  in  the  trustees,  unless  there  is  some 
direction  to  them  to  raise  the  money  and  pay  them,  or  unless 

1  Doe  V.  Biggs,  2  Taunt.  109  ;  Pybus  v.  Smith,  3  Bro.  Ch.  3  tO. 

2  1  Jarra.  Pow.  Dcv.  222.  n.  ;  Lewin  on  Trusts,  174  (otli  Lond.  ed.). 

8  Barker  v.  Greenwood,  4  M.  &  W.  421 ;  Keene  v.  Deardou,  8  East, 
24S;  Rife  r.  Geyer,  ."jO  Penn.  St.  305. 

*  Wliite  r.  Parker,  1  Bing.  N.  C.  573. 

s  Biscoe  V.  Perkins,  1  Ves.  &  B.  485,  489;  Webster  v.  Cooper,  14  IIow. 
499 ;  Vanderheyden  v.  Crandall,  2  Denio,  9. 

«  Naylor  v.  Arnitt,  1  R.  &  M.  501. 

7  Exeter  v.  Odiorne,  1  N.  II.  232. 

8  Gregory  v.  Henderson,  4  Taunt.  772 ;  Barker  v.  Greenwood,  5  M.  & 
W.  430. 

461 


§  o08.]  ESTATE    OF   THE    TRUSTEE.  [CHAP.    X. 

there  is  some  other  implication  that  they  are  to  exercise  an 
active  trust  for  the  purpose.^  (a)  Nor  does  the  legal  estate 
vest  in  the  trustees  where  the  charge  of  the  debts  and  legacies 
upon  the  real  estate  is  contingent  upon  the  insufficiency  of 
any  other  fund,  for  in  that  case  the  trustees  do  not  take  an 
immediate  vested  interest;^  but  if  the  charge  is  made  in  aid 
of  any  other  fund  without  contingency,  the  trustees  will  take 
immediately  a  legal  estate.^  So  if  the  trustees  are  to  demise 
the  estate  for  a  term,  at  rack-rent  or  otherwise,  the  term 
must  come  out  of  their  interest,  and  the  legal  estate  must  be 
in  them.^  If,  however,  the  instrument  confers  by  construc- 
tion upon  the  trustees  a  mere  i^ower  of  leasing,  a  good  legal 
term  may  be  created  by  the  exercise  of  the  power  and  with- 
out the  legal  estate  in  them.^  So  if  a  testator  give  his  trus- 
tees a  simple  power  of  disposing  of  his  estates,  as  that  his 
executors  or  trustees,  or  other  persons,  shall  sell  or  let  or 
mortgage,  or  otherwise  dispose  of  his  estate,  to  pay  his  debts 
or  legacies  or  annuities,  or  other  charges,  or  where  he 
directs  his  executors  to  raise  money,  no  estate  vests  in  the 
trustees,  executors,  or  other  persons,  but  it  descends  to  the 
heir  or  the  person  to  whom  it  is  directed  to  go  in  the  will, 
until  it  is  wanted  for  the  purposes  named,   and  then  it  is 

1  Doe  V.  Claridge,  6  Man.  &  Scott,  657;  1  Jarm.  Pow.  Dev.  224,  n. ; 
Kenrick  v.  Beauclerk,  3  B.  &  P.  178;  Cadogan  v.  Ewart,  7  Ad.  &  El.  6.36, 
668;  Jones  v.  Saye  &  Sele,  8  Vin.  262 ;  Creaton  r.  Creaton,  3  Sm.  &  Gif. 
386 ;  Collier  v.  McBean,  34  Beav.  426. 

-  Goodtitle  v.  Knott,  Coop.  43  ;  Hawker  v.  Hawker,  3  B.  &  Al.  537; 
Gibson  v.  Montfort,  1  Ves.  485. 

3  jMurthwaite  v.  Jenkinson,  2  B.  &  Cr.  357 ;  Wykham  v.  Wykham,  18 
Ves.  395 ;  and  see  Popham  v.  Bamfield,  1  Vern.  79. 

4  Doe  r.  Willan,  2  B.  &  Al.  84  ;  Doe  v.  Walbank,  id.  554 ;  Osgood  v. 
Franklin,  2  Johns.  Ch.  20;  Burr  v.  Sim,  1  Whart.  266  ;  Riley  v.  Garnett, 
3  De  G.  &  Sm.  629;  Brewster  v.  Striker,  2  Comst.  19;  Doe  v.  Cafe,  7 
Exch.  675. 

6  Doe  V.  Willan,  2  B.  &  Al.  84  ;  Doe  v.  Simpson,  5  East,  162. 

(a)  In  re  Stephens, 43  Ch.  D.  39;    not  charge  them  upon  the  testator's 
Re   Oliver,    62    L.    T.    533.      Mere    real  estate.     In  re  Head's  Trustees, 
authority   given   to   executors    and    45  Ch.  D.  310. 
trustees  by  will  to  pay  debts  does 
462 


CHAT.    X.]     WIIKN   TRUSTEES   TAKE    THE    LEGAL    TITLE.         [§  309. 

divested  only  to  the  extent  necessary  for  the  purposes  named. 
So  where  an  estate  was  to  remain  in  tlie  hands  of  executors, 
for  the  use  of  the  widow  and  children,  until  the  youngest 
child  should  hecome  twenty-one  years  old,  the  executors  or 
trustees  took  no  interest  in  the  estate  hut  a  simple  power.  ^ 
Such  directions  are  simple  power*  of  disposition,  which  may 
he  executed  without  any  legal  title.''' 

§  309.  Where  a  testator  gave  his  wife  an  annuity,  and  a 
certain  sum  to  his  children  to  he  paid  when  they  arrive  at 
twenty-one  years,  and  appointed  three  persons  hy  name,  "as 
trustees  of  inheritance  for  the  execution  thereof,"  it  was  held 
that  the  trustees  took  the  legal  estate.^  And  if  several  .trusts 
are  created  in  the  same  instrument,  some  of  which  would  he 
executed  hy  the  statute,  and  others  would  require  the  legal 
estate  to  remain  in  the  trustees,  they  will  take  the  legal 
estate ;  and  this  will  he  the  case,  though  the  trusts  are  limited 
to  arise  successively.'*  In  all  cases  where  an  estate  is  given 
to  trustees  to  preserve  contingent  remainders,  the  statute 
does  not  execute  the  estate  in  the  cestui  que  trust  ;^  and  in 
every  case  where  the  words  "  to  the  use  of  the  trustees  "  are 
used,  the  statute  does  not  execute  the  estate,  although  it  is 

1  Burke  v.  Valentine,  52  Barb.  412. 

2  Reeve  v.  Att.  Gen.,  2  Atk.  22:5;  Hilton  v.  Kenworthey,  3  East,  5.>3; 
Batenian  /•.  Batenian,  1  Atk.  421  ;  Fowler  v.  Jones,  1  Ch.  Cas.  262;  Lan- 
caster r.  Thornton,  2  Burr.  1027  ;  Yates  v.  Compton,  2  P.  Wins.  308  ;  Fay 
V.  Fay,  1  Cush.  94  ;  Shelton  v.  Homer,  5  Met.  4G2  ;  Bank  of  U.  S.  v.  Bev- 
erly, 10  Peters,  532 ;  1  How.  134  ;  Deering  v.  Adams,  37  IMaine,  264  ; 
Jackson  r.  Schauber,  7  Cow.  187;  2  Wend.  12;  Burr  v.  Sim,  1  Whart. 
26G  :  Guyer  v.  iMayiiard,  6  Gill.  &  J.  420  ;  Dabney  r.  Manning.  3  Oliio, 
321:  Jameson  v.  Smith,  4  Bibb,  307;  Hope  v.  Johnson,  2  Yerg.  123; 
Bradshaw  v.  Ellis,  2  Dev.  &  Bat.  Y.q.  20.  In  Pennsylvania,  such  powers 
conferred  upon  executors  pass  the  estate  by  force  of  a  statute.  Miller  v. 
Meetch,  8  Penn.  St.  417 ;  Chew  v.  Chew,  2S  id.  17. 

8  Trent  v.  Harding,  10  Ves.  495;  1  B.  &  P.  N.  C.  116 ;  7  East,  95;  Re 
Hough,  4  De  G.  &  Sni.  371 ;  Re  Turner,  2  De  G.,  F.  &  J.  527. 

*  Hawkins  v.  Luscombe.  2  Swaiist.  375,  391  ;  Ilorton  r.  Hortoii.  7  T. 
R.  652  ;  Blagrave  i'.  I5lagrave,  4  Exch.  .570  ;  Brown  iv  Whiteway,  8  Hare, 
156;  Stockbridgo  v.  Stockbridge,  99  Mass.  244.  But  see  Tucker  v.  John- 
eon,  16  Sim.  341  ;  Leonard  v.  Diamond,  31  IVId.  536. 

6  Laurens  i\  Jenny,  1  Spears,  365;  Co.  Litt.  265  a,  n.  2 ;  3.37  a,  n.  2. 

463 


§  310.]  ESTATE    OF   THE   TRUSTEE.  [CHAP.   X. 

to  the  use  of  the  trustees  in  trust  for  another ;  for  the  statute 
only  executes  the  first  use.^ 

§  310.  If  an  estate  be  given  to  trustees  upon  a  trust  for  a 
married  woman  "for  her  sole  and  separate  use,"  and  "her 
receipts  alone  to  be  sufficient  discharges,"  or  if  the  trust  be 
to  "permit  and  suffer  ^feme  covert  to  receive  the  rents  to  her 
separate  use,"  the  legal  estate  will  vest  in  the  trustees,  and 
the  statute  will  not  execute  it  in  the  cestui  que  trust.'^  In  all 
these  cases  the  court  will  give  this  construction  to  the  gift,  if 
possible;^  for  if  the  statute  should  execute  the  estate  in  the 
married  woman,  certain  rights  would  arise  to  the  husband 
which  might  defeat  the  intention  of  the  donor. ^  These  are 
not  the  only  words  that  will  prevent  the  estate  from  vesting. 
Any  words  that  show  an  intent  to  create  an  estate  or  a  trust, 
for  the  sole  and  separate  use  of  a  married  woman,  will  have 
the  same  effect.^  And  a  woman  in  contemplation  of  mar- 
riage may  deed  lands  to  another  to  stand  seized  to  the  sole 
use  of  the  grantor,  and  the  statute  will  not  affect  the  trans- 
action, but  a  trust  will  be  created,  as  otherwise  the  intent  of 
the  parties  would  be  defeated.^  But  it  is  said  that  if  an 
estate  is  "  released  by  deed  "  to  A.  and  his  heirs  "  upon  a 

»  Ante,  §  304  ;  Keene  v.  Deardon,  8  East,  248;  Whetstone  v.  St.  Bury, 
2  P.  Wms.  146  ;  Pr.  Ch.  591  ;  Sympson  v.  Turner,  1  Eq.  Cas.  Ab.  383; 
Hopkins  v.  Hopkins,  1  Atk.  586  ;  Hawkins  v.  Luscombe,  3  Swanst.  376, 
388. 

2  Horton  r.  Horton,  7  T.  R.  652  ;  Neville  v.  Saunders,  1  Vern.  415 ; 
Jones  V.  Saye  &  Sele,  1  Eq.  Cas.  Ab.  383 ;  Doe  v.  Claridge,  6  C.  B.  641  ; 
Hawkins  r.  Luscombe,  2  Swanst.  391  ;  South  v.  Alleyne,  5  Mod.  63,  101 ; 
Bush  V.  Allen,  id.  63;  Robinson  v.  Grey,  9  East,  1  ;  Ayer  v.  Ayer,  16 
Pick.  330;  Williraan  v.  Holmes,  4  Rich.  Eq.  475;  McNish  v.  Guerard,  4 
Strob.  Eq.  475;  Franciscus  r.  Reig-art,  4  Watts,  109  ;  Escheator  ?'.  Smith, 
4  McCord,  4.52;  Bass  v.  Scott,  2  Leigh,  3.56  ;  Rogers  v.  Ludlow,  3  Sandf. 
Ch.  104;  Richardson  v.  Stodder,  100  Mass.  528. 

8  Ware  v.  Richardson,  3  Md.  505;  Moore  v.  Shultz,  13  Penn.  St.  98, 

*  Ibid. ;  Rice  v.  Burnett,  1  Spear,  Eq.  580. 

6  Ayer  v.  Ayer,  16  Pick.  331;  Kirk  v.  Paulin,  7  Vin.  Ab.  95;  Tyrrel 
V.  Hope,  2  Atk.  558 ;  Darley  v.  Darley,  3  Atk.  399 ;  Hartley  v.  Hurle,  5 
Ves.  540. 

«  Pittsfield  Savings  Bank  v.  Berry,  63  N.  H.  109. 
464 


CHAP.    X.]     WHEN   TRUSTEES    TAKE    THE   LEGAL   TITLE.      [§  310  a. 

trust"  for  "the  sole  and  separate  use  of  the  releasor,"  and 
no  active  duty  is  imposed  ujion  the  trustee  in  rcs])Oct  to  the 
sole  and  separate  estate,  a  common-law  court  will  reject  the 
sole  and  separate  use  as  an  estate  unknown  to  the  law ;  and 
it  has  been  held  in  such  case  that  the  statute  vested  the 
estate  in  the  cestui  que  trust. ^ 

§  310  a.  But  in  order  that  an  estate  given  to  the  sole  and 
separate  use  of  a  woman  may  vest  and  remain  in  the  trustees, 
it  is  necessary  that  she  should  be  married  or  in  immediate 
contemplation  of  marriage.  'For  if  she  is  unmarried,  or  the 
estate  is  not  given  in  the  immediate  contemplation  of  her 
marriage,  it  will  vest  in  her  at  once  by  the  statute  of  uses ; 
or  she  will  have  the  right  to  call  for  the  execution  of  the 
trust  at  once,  by  a  conveyance  of  the  legal  estate  to  her  by 
the  trustee,  unless  there  are  some  other  provisions  in  the 
will  or  purposes  of  the  trust  which  render  it  an  active  trust, 
and  the  continuance  of  the  legal  estate  in  the  trustees  neces- 
sary for  its  purposes.  2  It  is  not  necessary  that  the  contem- 
plation of  her  immediate  marriage  should  appear  upon  the 
face  of  the  will  or  settlement,  if  in  fact  an  immediate  mar- 
riage was  contemplated,  and  such  fact  was  probably  known 
to  the  testator  or  settlor. ^  In  such  cases  the  trust  will  con- 
tinue during  the  coverture  of  the  woman,  and  at  the  decease 
of  her  husband  she  will  have  the  right  to  call  for  a  convey- 
ance of  the  property  as  upon  a  termination  of  the  trust.*  A 
conveyance  "in  trust  for  B.,  wife  of  C,  and  her  heirs  and 

1  Nash  V.  AUen,  1  Hurl.  &  Colt.  1G7  ;  Williams  v.  "Waters,  U  M.  &  W. 
166  (see  remarks  on  this  case  in  Ware  v.  Richardson,  3  Md.  505)  ;  Roberts 
V.  Moseley,  51  Mo.  2S2 ;  Westcott  v.  Edmunds,  68  Penn.  St.  34 ;  Ed- 
mund's App.,  id.  24. 

2  Lancaster  v.  Dolan,  1  Rawle,  231  ;  Smith  v.  Starr,  3  Wharton,  63  ; 
Hammersley  v.  Smith,  4  "\Miarton,  129;  McBride  v.  Smyth,  54  I'enn.  St. 
250;  Yarnall's  App.,  70  id.  339  ;  Ogden's  App.,  id.  501  ;  29  Legal  Int. 
(May,  1872)  165;  Wells  r.  McCall,  64  Penn.  St.  207;  Springer  r.  Arun- 
del, id.  218;  7  Phila.  R.  224;  Credlant's  Est.,  id.  58. 

8  Wells  V.  IMcCall,  64  Penn.  St.  207 ;  Springer  v.  Arundel,  id.  218. 
*  Megargee  v.  Naglee,  64  Penn.  St.  211;  Yarnall's  App.,  70  id.  339; 
Freyvogle  v.  Hughes,  56  id.  230. 

VOL.  I.  —  30  465 


§  312.]  ESTATE    OF   THE    TRUSTEE.  [CHAP.    X. 

assigns  forever, "  creates  a  trust  during  B.  's  coverture  and  a 
legal  estate  afterwards.  If  C.  dies,  the  legal  estate  is  in  B. 
and  her  heirs,  though  B.  subsequently  marries  again.  ^ 

§  311.  As  stated,  chattel  interests  in  land  and  personal 
property  were  never  within  the  statute  of  uses,  and  the  legal 
title  to  them  will  remain  in  the  trustee,  until  the  purposes 
of  the  trust  are  accomplished,  and  until  the  possession  of 
the  property  is  in  some  way  transferred  to  the  person  entitled 
to  the  use,  or  the  last  use.^  But  where  the  trust  is  at  an  end, 
the  title  is  in  the  person  entitled  to  the  last  use;^  and  a 
mere  delivery,  without  other  formality,  gives  such  person 
full  and  absolute  control  of  the  property.*  Until  such  deliv- 
ery the  law  cannot  recognize  any  equitable  interests  in 
the  property."  If  the  cestui  que  trust  is  an  infant,  it  is 
said  that  the  trust  will  not  be  executed  by  delivering  the 
property  to  him,  because  he  is  incapable  of  assenting  to  such 
transfer.^ 

§  312.  In  all  cases  where  an  estate  is  given  to  one  for  the 
use  of  another,  in  such  manner  that  the  statute  of  uses  steps 
in  and  executes  the  estate  in  the  cestui  que  trust,  the  statute 
executes  in  the  cestui  que  trust  only  the  estate  that  the  first 
donee  or  trustee  takes ;  that  is,  the  statute  executes  or  trans- 
fers the  exact  estate  given  to  the  trustee.  Therefore,  if  A. 
give  an  estate  to  B.  and  his  heirs  for  the  use  of  C.  and  his 
heirs,  the  statute  will  execute  the  fee-simple  in  C.     But  if 

1  Moore  v.  Stinson,  144  Mass.  594. 

2  Ante,  §  303;  Harley  v.  Platts,  6  Rich.  L.  315;  Rice  v.  Burnett,  1 
Spear,  Eq.  590;  Schley  v.  Lyon,  6  Ga.  530;  Doe  v.  Nichols,  1  B.  &  Cr. 
336;  Slevin  v.  Brown,  3  Mo.  176. 

8  Westcott  V.  Edmunds,  68  Penn.  St.  34;  Bacon's  App.,  57  id.  500; 
Dodson  V.  Ball,  60  id.  492;  Barnett's  App.,  10  Wright,  392;  Rife  v.  Geyes, 
59  Penn.  St.  395;  Freyvogle  v.  Hughes,  56  id.  228 ;  Deibert's  App.,  No.  1, 
83  id.  462 ;  Schaffer  v.  Lauretta,  57  Ala.  14. 

4  Ibid. ;  Bringhurst  v.  Cuthburt,  6  Binn.  398;  Lawrie  v.  Bankes,  4  K. 
&  J.  142. 

5  Ibid. ;  lorr  v.  Hodges,  1  Spear,  Eq.  593. 

«  Harley  v.  Platts,  6  Rich.  L.  315.     But  see  Lawrie  v.  Bankes,  4  K.  & 
J.  142;  White  v.  Baylor,  10  Ir.  Eq.  53;  Bulstrode,  184. 
466 


CHAP.   X.]    WHETHER  TRUSTEES  TAKE   AN   INHERITANCE.    [§  312. 

A.  gives  an  estate  to  B.  for  the  use  of  C.  and  his  heirs,  the 
statute  will  execute  only  an  estate  for  the  life  of  A.  in  C.  ; 
for  that  is  the  extent  of  the  estate  conveyed  to  B.  by  a  deed 
in  that  form ;  that  is,  by  a  deed  that  has  no  words  of  inheri- 
tance in  B.  ^  While  this  is  the  rule  in  respect  to  estates 
which  the  statute  executes,  a  very  different  rule  applies  to 
estates  upon  a  trust  or  use  not  executed  by  the  statute.  In 
these  cases,  the  extent  or  quantity  of  the  estate  taken  by  the 
trustee  is  determined,  not  by  the  circumstance  that  words  of 
inheritance  in  the  trustee  are  or  are  not  used  in  the  deed  or 
will,  but  by  the  intent  of  the  parties.  And  the  intent  of  the 
parties  is  determined  by  the  scope  and  extent  of  the  trust. 
Therefore,  the  extent  of  the  legal  interest  of  a  trustee  in  an 
estate  given  to  him  in  trust  is  measured,  not  by  words  of  in- 
heritance or  otherwise,  but  by  the  object  and  extent  of  the 
trust  upon  which  the  estate  is  given. ^  On  this  principle,  two 
rules  of  construction  have  been  adopted  by  courts:  first, 
"Wherever  a  trust  is  created,  a  legal  estate,  sufficient  for 
the  purposes  of  the  trust,  shall,  if  possible,  be  implied  in  the 
trustee,  whatever  may  be  the  limitation  in  the  instrument, 

1  Newhall  v.  Wheeler,  7  Mass.  189;  Cro.  Car.  231;  Nelson  r.  Davis, 
35  Ind.  474;  Baptist  Soc.  v.  Hazen,  100  Mass.  322;  Idle  v.  Cooke.  1  P. 
Wms.  77  ;  Doe  v.  Smeddle,  2  B.  &  A.  126 ;  Chambers  v.  Taylor,  2  M.  & 
Cr.  376;  Vanhorn  v.  Harrison,  1  Dall.  137;  Jackson  v.  Fish,  10  Johns. 
456.  Where  a  gift  is  made  by  deed  to  individuals  and  their  "  successors," 
without  the  word  "heirs,"  in  trust  for  or  to  the  use  of  a  corporation  or 
religious  society,  an  inheritance  or  succession  is  not  created ;  and  if  the 
statute  of  uses  applies  to  the  conveyance,  only  a  life-estate  is  executed  in 
the  corporation  or  religious  society.  Henderson  i\  Hunter,  59  Penn.  St. 
325;  First  Bap.  Soc.  in  Andover  v.  Hazen,  100  oMass.  322. 

2  Cleveland  v.  Hallett,  6  Cush.  407 ;  Gibson  v.  Montfort,  1  Ves.  485 ; 
Newhall  v.  Wheeler,  7  Mass.  189,  198;  Gates  v.  Cooke,  3  Burr.  16S4 ; 
Stearns  v.  Palmer,  10  Met.  32 ;  Sears  r.  Russell,  8  Gray,  86 ;  Gould  v. 
Lamb,  11  Met.  84;  Brooks  v.  Jones,  id.  191  ;  Fisher  v.  Fields,  10  Johns. 
495;  Doe  v.  Field,  2  B.  &  Ad.  5G4 ;  Trent  v.  Hanning,  7  East,  99;  Doe  v. 
Willan,  2  B.  &  A.  84;  8  Vin.  Ab.  202,  pi.  18;  Shaw  v.  Wright,  1  Eq.  Cas. 
Ab.  176,  pi.  8;  Brewster  v.  Striker,  1  E.  D.  Smith,  321;  Richardson  r. 
Stodder,  100  Mass.  528 ;  Fox  v.  Storrs,  75  Ala.  267 ;  Gosson  t;.  Ladd,  77 
id.  224;  West  v.  Fitz,  109  111.  425  ;  Jourolmon  v.  Massengill,  86  Teiin. 
82.  See  Henderson  v.  Hill,  9  Lea  (Tenn.),  25;  Young  v.  Bradley,  lul 
U.  S.  782. 

467 


§  313.]  ESTATE   OF   THE    TRUSTEE.  [CHAP.   X. 

whether  to  him  and  his  heirs  or  not."^(a)  And,  second, 
"Although  a  legal  estate  may  be  limited  to  a  trustee  to  the 
fullest  extent,  as  to  him  and  his  heirs,  yet  it  shall  not  be 
carried  farther  than  the  complete  execution  of  the  trust 
necessarily  requires.  "^ 

§  318.  Thus  courts  have  by  construction  implied  an  estate 
in  the  trustees,  although  no  estate  was  given  them  in  words; 
but,  in  all  such  cases,  the  trustees  were  required  to  do  some- 
thing that  required  a  legal  estate  of  some  kind  in  them ;  as, 

1  Xeilson  v.  Lagow,  12  How.  98;  Sears  v.  Russell,  8  Gray,  86;  Cham- 
berlain V.  Thompson,  10  Conn.  244 ;  Cleveland  v.  Hallett,  6  Cush.  407 ; 
Payne  v.  Sale,  2  Dev.  &  Bat.  Eq.  460;  Nichol  v.  Walworth,  4  Denio,  385; 
Upham  V.  Varney,  15  N.  H.  462 ;  King  v.  Parker,  9  Cush.  71 ;  Williams 
V.  First  Soc.  in  Cin.,  1  Ohio  St.  478;  Hawley  v.  James,  5  Paige,  318; 
Deering  v.  Adams,  37  Maine,  265;  Webster  v.  Cooper,  14  How.  499;  Com- 
bry  V.  McMichael,  19  Ala.  751;  Gill  v.  Logan,  11  B.  Mon.  233;  Powell  v. 
Glen,  21  Ala.  468 ;  King  v.  Akerman,  2  Black,  408 ;  Ward  v.  Amory,  1 
Curtis,  C.  C.  427 ;  White  v.  Baylor,  10  Jr.  Eq.  54 ;  Meeting  St.  Bap.  Soc. 
V.  Hail,  8  R.  T.  240  ;  Nelson  v.  Davis,  35  Ind.  474 ;  Kirkland  v.  Cox,  94 
lU.  400 ;  Preachers'  Aid  Society  v.  England,  106  111.  128. 

2  Norton  v.  Norton,  2  Sandf.  296  ;  Williman  v.  Holmes,  4  Rich.  Eq. 
475;  Watson  v.  Pearson,  2  Exch.  593;  Blagrave  v.  Blagrave,  4  id.  569; 
Brown  v.  Whiteway,  8  Hare,  156 ;  Saye  &  Sele  v.  Jones,  1  Eq.  Cas.  Ab. 
383 ;  3  Bro.  P.  C.  113  ;  Shapland  v.  Smith,  1  Bro.  Ch.  75 ;  Heardson  v. 
Williamson,  1  Keen,  33 ;  Player  v.  Nicholls,  1  B.  &  Cr.  142  ;  Warter  v. 
Hutchinson,  5  Moore,  153  ;  1  B.  &  Cr.  721 ;  Chapman  v.  Blissett,  Forr. 
145;  Doe  v.  Hicks,  7  T.  R.  433 ;  Nash  v.  Coates,  3  B.  &  A.  839 ;  Ex  parte 
Gadsden,  3  Rich.  468;  Adams  v.  Adams,  6  Q.  B.  866;  Barker  v.  Green- 
wood, 4  M.  &  W.  429;  Doe  v.  Claridge,  6  C.  B.  641 ;  Warer.  Richardson, 
3  Md.  505;  Pearce  v.  McClenaghan,  5  Rich.  178;  Ellis  v.  Fisher,  3  Sneed, 
231 ;  Gardenhire  v.  Hinds,  1  Head,  402 ;  Smith  v.  IVIetcalf ,  id.  64  ;  Slevia 
V.  Brown,  32  Mo.  176;  Greenwood  v.  Coleman,  34  Ala.  150;  Bryan  v. 
Weeras,  29  Ala.  423;  Koenig's  App.,  57  Penn.  St.  552;  Ivory  v.  Burns, 
56  id.  300;  "Wilcox  v.  Wilcox,  47  N.  H.  488;  McBride  v.  Smyth,  59  id. 
245;  West  v.  Fitz,  109  111.  425;  Farmers'  Nat'l  Bank  v.  Moran,  30 
Minn.  167;  Davis  v.  Williams,  85  Tenn.  646.  But  see  Watkins  v.  Specht, 
7  Cold.  585;  McElroy  v.  McElroy,  113  Mass.  509. 

(a)  The  trustee  takes  such  an  San  Francisco,  etc.,  R.  Co.,  107  Cal. 

estate   only  as  is   adequate  to  the  587;   Carney  v.  Kain,  40  W.  Va. 

execution  of  the  trust.     Morffew  v.  758. 
468 


CHAP.   X.]    WHETHER   TRUSTEES   TAKE   AN   INHERITANCE.    [§  315. 

where  a  testator  gave  to  a  married  woman  the  rents  and 
profits  of  certain  hxnds  to  be  paid  her  by  his  executors,  it  was 
held  to  be  a  devise  of  the  land  itself  to  the  executors,  al- 
though nothing  was  given  them  in  terms,  to  enable  tliem  to 
carry  out  the  purposes  of  the  trust.  ^  (a)  So  a  power  given  to 
executors  to  rent,  lease,  repair,  and  insure,  implies  a  legal 
title  in  them.^ 

§  314.  In  the  same  manner,  and  for  the  same  reasons, 
courts  have  enlarged  or  extended  estates  given  to  trustees. 
Thus,  if  A.  gives  an  estate  to  B.  without  words  of  limitation, 
it  is  an  estate  for  the  life  of  A.  ;  but  if  A.  gives  an  estate  to 
B.  to  pay  certain  annuities  to  persons  named,  for  their  lives, 
the  trustee  takes  an  estate  for  the  lives  of  the  several 
annuitants.^ 

§  315.  So,  if  land  is  devised  to  trustees  without  the  word 
"heirs,"  and  a  trust  is  declared  which  cannot  be  fully  executed 
but  by  the  trustees  taking  an  inheritance,  the  court  will  en- 
large or  extend  their  estate  into  a  fee-simple,  to  enable  them 
to  carry  out  the  intention  of  the  donor.*  (i)     Thus,  if  land  is 

1  Gates  V.  Cooke,  3  Burr.  1684  ;  W.  Black.  543  ;  Bush  v.  Allen,  SIMod. 
63 ;  Doe  v.  Woodhouse,  4  T.  R.  89  ;  Doe  v.  Homfray,  6  Ad.  &  El.  206  ; 
Doe  V.  Sampson,  5  East,  162  ;  Feedey's  App.,  60  Penn.  St.  349. 

2  Kellatn  v.  Allen,  52  Barb.  G05. 

«  Jenkins  v.  Jenkins,  Willes,  656  ;  Shaw  v.  "Weigh,  2  Str.  798  ;  Gates 
V.  Cooke,  3  Burr.  1684,  and  other  cases  cited,  §  313,  n.  2. 

*  Villiers  v.  Villiers,  2  Atk.  72  ;  Cleveland  v.  Hallett,  6  Cush.  407 ; 
Fisher  v.  Fields,  10  Johns.  505  ;  Ellis  v.  Fisher,  3  Sneed,  231 ;  Rackham 
V.  Siddall,  1  Mac.  &  G.  607 ;  2  Hall  &  T.  44  ;  Deering  r.  Adams,  37  Maine, 
265;  Brown  v.  Brown,  12  Md.  87;  Webster  r.  Cooper,  14  How.  499; 
Blagrave  v.  Blagrave,  4  Exch.  569 ;  Hawkins  v.  Chapman,  30  Md.  94 ; 

(a)  See  Davies  to  Jones,  24  Ch.  ^lass.  9 ;  Dorr  v.  Clapp,   160  Mass. 

D.  190.  538;    Hopkins   v.   Grimshaw,   165  ; 

(6)  This  rule  depends  upon  the  U.  S.  342,  352 ;  Taine  v.  Forsaith, 
intention,  which  is  determined  by  84  Maine,  66  ;  Phillips  v.  Swank, 
the  whole  instrument  ;  and,  in  gen-  120  Penn.  St.  76  ;  Kennedy  v.  Gram- 
era),  the  word  "  heirs  "  is  not  neces-  ling.  33  S.  C  367  ;  Crane  v.  Bolles, 
sary  when  the  scope  of  the  powers  49  N.  J.  Eq.  373;  Carney  v.  Kain, 
granted  requires  a  fee  for  their  exe-  40  W.  Va.  758. 
cution.      O'Rourke   v.   Beard,   151 

469 


§  316.]  ESTATE  OF  THE  TKUSTEE.         [CHAP.  X. 

conveyed  to  trustees,  without  the  word  "heirs,"  in  trust  to 
sell,  they  must  have  the  fee,  otherwise  they  could  not  sell.  ^  (a) 
The  construction  would  be  the  same  if  the  trust  was  to  sell 
the  whole  or  a  part ;  for  no  purchasers  would  be  safe  unless 
hey  could  have  the  fee;^  and  a  trust  to  convey  or  to  lease  at 
discretion  would  be  subject  to  the  same  rule.^  A  fortiori,  if 
an  estate  is  limited  to  trustees  and  their  heirs  in  trust  to  sell 
or  mortgage  or  to  lease  at  their  discretion,  or  if  they  are  to 
convey  the  property  in  fee,  or  divide  it  equally  among  certain 
persons;  for  to  do  any  or  all  these  acts  requires  a  legal  fee.* 

§  316.  Where  an  estate  is  given  to  trustees  in  fee  upon 
trusts  that  do  not  exhaust  the  whole  estate,  and  a  power  is 
superadded  which  can  only  be  exercised  by  the  trustees  convey- 
ing in  fee-simple,  the  trustees  will  take  the  fee,  and  the  estate 
conveyed  by  them  will  be  sustained  by  the  fee  in  them,  and 

Farquharson  v.  Eichelberger,  15  Md.  72  ;  Packard  v.  Marshall,  138  Mass. 
302. 

1  Gibson  v.  Montford,  1  Ves.  491;  Amb.  95;  Shaw  v.  Weigh,  1  Eq. 
Cas.  Ab.  184;  Bagshaw  v.  Spencer,  1  Ves.  144;  Glover  v.  Monckton,  3 
Bing.  113  ;  10  Moore,  453  ;  Hawker  v.  Hawker,  3  B.  &  A.  537 ;  Warter  v. 
Hutchinson,  5  Moore,  143 ;  1  B.  &  C.  121  ;  Watson  v.  Pearson,  2  Exch. 
594 ;  Chamberlain  v.  Thompson,  10  Conn.  244  ;  Doe  v.  Howland,  7  Cow. 
277 ;  Jackson  v.  Robins,  16  Johns.  537;  Spessard  v.  Rohrer,  9  Gill,  262. 

2  Bagshaw  v.  Spencer,  1  Ves.  144  ;  Kirkland  v.  Cox,  94  111.  402. 

»  Booth  V.  Field,  2  B.  &  Ad.  556  ;  Keen  v.  Walbank,  id.  554  ;  Brewster 
V.  Striker,  2  Comst.  19 ;  Deering  v.  Adams,  37  Maine,  265.  But  see  Doe 
V.  Cafe,  7  Exch.  675. 

*  Bagshaw  v.  Spencer,  1  Ves.  142 ;  Keane  v.  Deardon,  8  East,  242 ; 
Cadogan  v.  Ewart,  7  Ad.  &  El.  636  ;  Tompkins  v.  Willan,  2  B.  &  A.  84; 
Keen  v.  Walbank,  id.  354  ;  Garth  v.  Baldwin,  2  Ves.  646  ;  Booth  )•.  Field, 
2  B  &  Ad.  564  ;  Rees  v.  Williams,  2  M.  &  W.  749  ;  Shelly  v.  Eldin,  4  Ad. 
&  El.  582  ;  Creaton  v.  Creaton,  2  Sm.  &  Gif.  386 ;  Collier  v.  "Walters,  L. 
R.  17  Eq.  265. 

(a)  A  deed  for  church  uses  to  a  of  1879,  the  word  "  heirs  "  was  neces- 

Catholic  bishop  and  his  successors  in  sarj'  to  convey  a  fee,  unless  it  was 

office,  habendum  to  him  "  and  his  alleged  and  proved  that  it  was  omit- 

successors     and     assigns     forever,''  ted  by  mistake.    Fulbright  ?\  Yoder, 

gives    the    bishop    power    to    sell.  113  N.  C.  456  ;  Allen  v.  Baskerville, 

Olcott  V.  Gabert,  86  Texas,  121.     In  123  id.  126. 
North  Carolina,  prior  to  the  statute 

470 


CHAP.    X.]    WHETHER   TUUSTEES   TAKE   AN    INHERITANCE.    [§  316. 

not  by  the  mere  power.  ^  Wliere  it  is  possible  that  the  trus- 
tees may  be  under  the  necessity  of  exercising  a  power  over 
the  fee,  as  by  mortgage,  a  gift  to  them  of  the  fee  will  not  be 
cut  down;'-*  and  the  rule  is  that  all  the  trusts  which  trustees 
must  execute  are  to  be  executed  out  of  the  estate  given  them.^ 
Lord  Talbot  said  that  it  was  wholly  a  matter  of  intention 
whether  the  trustee  should  take  a  fee  or  not  ;*  hence,  in  other 
cases,  it  has  been  said  that  if  no  intention  a})peared  upon 
the  face  of  the  will  that  the  trustees  were  to  take  anything 
beyond  what  was  necessary  for  the  execution  of  the  trust,  the 
estate,  though  limited  to  them  and  their  heirs,  would  be  cut 
down  to  the  limit  of  the  trust.  ^  So  trustees  may  take  only  a 
chattel  interest  in  real  estate,  although  limited  to  them  and 
their  heirs,  as  where  they  are  to  hold  it  in  trust  only  for  a 
short  time  to  pay  debts  and  legacies,  and  convey  it  to  the 
cestui  que  trust  when  he  comes  of  age  or  at  a  certain  time;^ 
and  this  construction  will  be  much  stronger  if  the  fee  is  not 
limited  to  them.'^     The  same  construction  as  to  the  estate  of 

1  Fenwick  v.  Potts,  8  De  G.,  M.  &  G.  506;  Poad  v.  Watsou,  37  Eng. 
L.  &  Eq.  112;  Watkins  v.  Frederick,  11  II.  L.  Cas.  354;  Iladdelsey  r. 
Adams,  22  Beav.  2G6.  A  power  of  apixjintment  superadded  to  a  life-es- 
tate will  not  enlarge  it  into  a  fee  ;  and  so  a  power  of  appointment  added 
to  an  estate  of  inheritance  will  not  cut  down  the  fee.  Yarnell's  App.,  70 
Penn.  St.  342;  Burleigh  r.  Clough,  52  X.  II.  207. 

2  Fenwick  v.  Potts,  8  De  G.,  M.  &  G.  506 ;  Horton  v.  Ilorton,  7  T.  R. 
652  ;  Brown  v.  ^Yhiteway,  8  Hare,  156. 

*  Watson  V.  Pearson,  2  Exch.  593. 

*  Chapman  v.  Blissett,  Forr.  Cas.  t.  Talb.  145 ;  Hawkins  v.  Luscombe, 
2  Swanst.  375;  Curtis  v.  Price,  12  Ves.  89  ;  Collier  v.  McBean,  L.  R.  1 
Ch.  80, 

6  Doe  V.  Hicks,  7  T.  R.  433 ;  Nash  v.  Coates,  3  B.  &  A.  839 ;  Boteler 
V.  Allington,  1  Bro.  Ch.  72,  is  criticised  in  7  T.  R.  433,  by  Lord  Kenyon; 
Webster  v.  Cooper,  14  IIow.  499  ;  Beaumont  v.  Salisbury,  19  Beav.  198. 

«  Ooodtitle  V.  Whitby,  1  Burr.  228;  Warier  r.  Hutchinson,  1  B.  &  Cr. 
721  ;  Stanley  i'.  Stanley,  16  Ves.  491  ;  Badder  v.  Harris.  2  Dowl.  &  Ry. 
76  ;  Wheedon  v.  Lea,  3  T.  R.  41 ;  Pratt  v.  Tiniins,  1  B.  &  Aid.  530  ; 
Brune  v.  Martin,  8  B.  &  Cr.  497  ;  Tucker  v.  Johnson,  16  Sim.  341 ;  Glover 
V.  Monckton,  3  Bing.  13  ;  Doe  v.  Davies,  1  Q.  B.  430 ;  Player  r.  Nicholls, 
1  B.  &  Cr.  336  ;  Cadogan  v.  Ewart,  7  Ad.  &  E.  136,  667. 

T  Pearce  v.  Savage,  45  Maine,  90  ;  Boraston's  Case,  3  Co.  19  ;  Player 
t;.  NichoUs,  1  B.  &  Cr.  336. 

471 


§  317.]  ESTATE  OF  THE  TRUSTEE.         [CHAP.  X. 

trustees  will  prevail  where  the  limitation  is  to  them  and 
their  heirs,  to  their  use  and  behoof  forever,  whether  it  is 
contained  in  a  deed  or  will.^  Where  a  gift  was  made  to  one 
in  trust  for  his  wife  for  life,  and  to  her  heirs  forever,  subject 
to  her  husband's  curtesy,  the  trustee  took  an  estate  for  the 
life  of  his  wife  only,  and  at  her  death  the  trust  ceased. ^ 

§  317.  Where  a  testator  gave  all  his  real  and  personal 
estate  to  trustees,  "their  executors,  administrators,  and 
assigns,"  in  trust  to  pay  several  annuities,  sums,  and  lega- 
cies, on  the  deficiency  of  the  personal  estates  out  of  the  rents, 
issues,  and  profits  arising  from  the  real  estate,  and  gave  the 
residue  over.  Lord  Hardwicke  held  that  if  the  annual  recep- 
tion of  the  rents  and  profits  would  satisfy  the  purposes  of  the 
trust,  the  trustees  would  take  only  a  chattel  interest  in  the 
real  estate ;  but,  as  the  land  must  be  sold  for  the  payment  of 
the  legacies,  the  trustees  took  the  fee.^  The  court,  however, 
is  always  reluctant  to  enlarge  an  estate  in  trustees  beyond 
the  terms  of  the  gift ;  and  it  will  not  be  done  unless  it  is 
necessary  for  the  execution  of  the  trust*  Where  it  is  plain 
that  the  trustees  are  to  pay  all  charges,  debts,  legacies,  annu- 
ities, or  other  moneys  out  of  the  rents  and  profits  of  the 
estate,  and  no  anticipation  of  the  income  is  necessary  or  con- 
templated for  that  purpose,  they  will  take  a  chattel  interest, 
or  a  term  for  years  necessary  for  the  purpose,  and  not  the 
legal  inheritance ;  ^  and  if  the  testator  use  an  inartificial 
word,  as  that  the  trustees  are  to  lend  the  estate,  they  will  not 

1  Hawkins  v.  Luscombe,  2  Swanst.  375;  Curtis  v.  Price,  12  Ves.  89; 
Venables  v.  Morris,  7  T.  R.  342 ;  Watkins  v.  Specht,  7  Cold.  585.  But 
see  Cooper  v.  Kyiiock,  L.  R.  8  Ch.  402. 

2  Noble  V.  Andrews,  37  Conn.  346. 

8  Gibson  v.  Montfort,  1  Ves.  485 ;  Amb.  93  ;  Woodgate  v.  Flint,  44 
N.  Y.  21,  n. 

*  Heardson  v.  Williamson,  1  Keen,  33  ;  \^Tiite  ?'.  Sinapson,  5  East, 
162;  Wykham  v.  Wykham,  3  Taunt.  310;  11  East,  458;  18  Ves.  395, 
416;  Ackland  v.  Lutley,  9  Ad.  &  El.  879  ;  Doe  v.  Claridge,  6  C.  B.  641. 

5  Cordall's  Case,  Cro.  Eliz.  315  ;  Carter  i\  Bernadiston,   1  P.   Wms. 
589 ;  Hitcliens  v.  Kitchens,  2  Vern.  404 ;  Wykham  v.  Wykham,  18  Ves. 
416;  Heardson  v.  Williamson,  1  Keen,  33;  Co.  Litt.  42  a. 
472 


§  319.]   WHETHER  tkustees  take  ax  inheritance,  [chap.  X. 

take  a  fee.'  A  trust  to  preserve  contingent  reniuiuders, 
without  limitation  to  heirs,  will  not  be  enlarged;  lor  the 
trust  does  not  require  an  estate  of  inheritance.^ 

§  318.  If,  however,  the  subject-matter  of  the  gift  to  trus- 
tees is  personal  estate,  the  whole  legal  interest  will  vest  in 
them  without  words  of  limitation.  They  may  generally  dis- 
pose of  personal  estate  absolutely,  being  compelled  to  account 
for  it.^ 

§  319.  In  England,  a  distinction  is  kept  up  between  limi- 
tations to  trustees  in  wills  and  deeds.  Thus  it  is  said  that 
in  wills  there  is  more  room  for  construction  to  ascertain  and 
carry  into  effect  the  intention  of  testators,  and  that  in  deeds 
the  rules  of  property  are  carried  into  effect  with  more  strict- 
ness. So  it  is  said,  that  if  in  a  deed  an  estate  is  given  to  a 
trustee  and  his  heirs,  there  is  no  power  to  abridge  the  estate 
on  the  ground  that  the  pur])Oses  of  the  trust  do  not  require 
a  fee  in  the  trustees ;  and  that,  on  the  other  hand,  when  an 
estate  is  given  by  deed  to  a  trustee  in  trust  without  words  of 
inheritance,  there  is  no  authority  to  enlarge  the  estate  in  the 
trustee  because  the  purposes  of  the  trust  seem  to  require  a 
larger  estate.  There  is  a  very  respectable  amount  of  author- 
ity, even  in  England,  that  an  estate  given  to  trustees  and 
their  heirs  in  trust,  by  a  deed,  may  be  restricted  to  an  estate 
for  the  life  of  another,  where  the  purposes  of  the  trust  can 

1  Payne  v.  Sale,  2  Dev.  &  Bat.  Eq.  455. 

2  Thong  V.  Bedford,  1  Bro.  Ch.  14;  Webster  r.  Cooper,  14  How.  499; 
Beaumont  r.  Salisbury,  19  Beav.  198  ;  Co.  Litt.  290  b;  Butl.  n.  viii. 

8  Dinsmorc  i\  Biggert,  9  Barr,  lo5  ;  Nicoll  r.  Walworth,  1  Donio,  385; 
Chamberlain  v.  Thompson,  10  Conn.  244  ;  Combry  v.  ^McMichael,  19  Ala. 
751  ;  Elton  i-.  Shepherd,  1  Bro.  Ch.  531  ;  2  Jarm.  Pow.  Dev.  C31  ;  Doe  r. 
Willan,  2  B.  &  Aid.  84  ;  Smith  v.  Thompson,  2  Swan,  386  ;  Foster  r.  Coe, 
4  Lans.  59 ;  Fellows  v.  Heermans,  id.  230  ;  and  Aiken  r.  Smith,  1  Sneed, 
301,  held  that  when  personalty  was  limited  to  trustees,  their  heirs  and 
executors,  in  trust  for  a  married  woman  for  life,  and  after  her  death  to 
be  equally  divided  among  her  children  or  to  be  conveyed  to  her  children, 
the  trustee  took  an  estate  for  her  life  only,  and  that  at  her  death  the 
trust  ceased.  These  cases,  however,  are  not  consi^iteut  with  principle  or 
authority,  and  probably  would  not  be  followed. 

473 


§  320.]  ESTATE   OF   THE    TRUSTEE.  [CHAP.    X. 

all  be  answered  by  such  an  estate  in  the  trustee.^  in  the 
cases  sustaining  the  power  to  abridge  the  legal  operation  of 
the  words  of  inheritance  in  a  deed,  there  were  some  further 
limitations  of  the  estate,  either  to  the  trustees  or  to  third 
persons,  inconsistent  with  the  idea  of  a  fee  in  the  trus- 
tees. ^  The  authorities,  however,  greatly  preponderate,  that 
courts  cannot  look  to  the  equitable  interests  given  or  created 
by  a  deed,  in  order  to  determine  whether  the  trustee  under  it 
takes  a  fee  or  not,  if  there  are  plain  words  of  inheritance  in 
it.  Lord  Eldon  said,  that  it  appeared  to  him  very  difficult 
to  apply  the  doctrine  to  a  deed,  and  he  refused  thus  to  cut 
down  an  estate.^  While  there  is  this  conflict  of  authority 
upon  the  point,  whether  an  estate  given  in  fee  by  deed  to 
trustees  can  be  abridged  to  the  extent  of  the  trust,  there  is 
said  to  be  no  authority  in  England  that  an  estate  given  by  a 
deed  to  trustees  without  words  of  inheritance  can  be  enlarged 
to  suit  the  purposes  of  the  trust  ;^  although  there  is  one 
expression  by  Lord  Hardwicke  that  such  enlargement  is 
within  the  power  of  the  court  when  the  circumstances  re- 
quire it.^ 

§  320.  In  the  United  States,  the  distinction  between  deeds 
and  wills,  in  respect  to  the  trustees'  estate,  has  not  been 
kept  up;  and  the  general  rule  is,  that,  whether  words  of  in- 
heritance in  the  trustee  are  or  are  not  in  the  deed,  the  trustee 
will  take  an  estate  adequate  to  the  execution  of  the  trust,  and 
no  more  nor  less.^     Courts  will    abridge   the   estate  where 

1  Curtis  V.  Price,  12  Ves.  89 ;  Venables  v.  INIorris,  7  T.  R.  342,  438 ; 
Doe  V.  Hicks,  id.  437  ;  Brune  i\  Martyn,  8  B.  &  Cr,  497  ;  Beaumont  v. 
Salisbury,  19  Beav.  (198,  where  the  authorities  were  commented  on); 
Lewis  V.  Rees,  3  K.  &  J.  132 ;  Cooper  v.  Kynock,  L.  R.  8  Ch.  403. 

2  Ibid. 

3  Wykham  r.  Wykham,  18  Ves.  395  ;  Colomore  v.  Tyndall,  2  Y.  &  J. 
605;  Co.  Litt.  20  b;  Butl.  n.  viii. ;  Dinsmore  v.  Biggert,  9  Barr,  123; 
Lewis  V.  Rees,  3  K.  &  J.  132,  where  the  authorities  are  reviewed  by 
Wood,  V.  C. 

*  Potiow  V.  Fricker,  6  Exch.  570 ;  Hill  on  Trustees,  251. 

5  Villiers  v.  Villiers,  2  Atk.  72. 

6  King  V.  Parker,  9  Cush.  71 ;  Steams  v.  Parker,  10  Met.  32  ;  Gould  v, 

4:74. 


CHAP.   X."|    WHETHER   TRUSTEES   TAKE   AN   INHERITANCE.    [§  320. 

words  of  inheritance  arc  used,  if  the  execution  of  the  trust 
docs  not  require  a  fee;  and  so  they  will  enlarge  the  estate  if 
no  words  of  inlicritance  arc  used  in  a  deed.*  In  examining 
the  cases,  however,  where  a  trust  ceases  upon  the  death  of  a 
tenant  for  life,  or  upon  the  death  of  a  person  for  whom  the 
property  was  held  in  trust,  care  must  be  taken  that  this  ju'in- 
ciple  is  not  confounded  with  another.  Thus,  where  an  estate 
is  given  to  trustees  and  their  heirs  in  trust  to  pay  the  in- 
come to  A.  during  her  life,  and  at  her  decease  to  hold  the 
same  for  the  use  of  her  children  or  her  heirs,  or  for  the  use 
of  other  persons  named,  the  trust  ceases  upon  the  death  of 
A.  for  the  reason  that  it  remains  no  longer  an  active  trust; 
the  statute  of  uses  immediately  executes  the  use  in  those 
who  are  limited  to  take  it  after  the  death  of  A.,  and  the 
trustees  cease  to  have  anything  in  the  estate,  not  because  the 
court  has  abridged  their  estate  to  the  extent  of  the  trust,  but 
because,  having  the  fee  or  legal  estate,  the  statute  of  uses 
has  executed  it  in  the  cestui  que  trust.^  But  where  the  opera- 
tion of  the  statute  of  uses  docs  not  put  an  end  to  the  trust. 

Lamb,  11  INIet.  84  ;  Cleveland  v.  Ilallett,  G  Cush.  403  ;  Att.  Gen.  v.  Federal 
Street  Meeting  House,  3  Gray,  1 ;  Wright  r.  Delafield,  23  Barb.  498;  Fisher 
V.  Fields,  10  Johns.  105 ;  Welch  v.  Allen,  21  Wend.  147  ;  Rutledge  v.  Smith, 
1  Busb.  Eq.  283  ;  Liptrot  v.  Holmes,  1  Kelly  (Ga.),  390 ;  Cooper  v.  Kyuock, 
L.  II.  8  Ch.  402. 

1  Neilson  r.  Lagow,  12  How.  110;  North  v.  Philbrook,  34  Maine,  537 ; 
Rutledge  v.  Smith,  1  Busb.  Eq.  283;  Cleveland  i'.  Hallett,  6  Cush.  406. 
See  to  the  contrary,  Miles  v.  Fisher,  10  Ohio,  1. 

2  Parker  v.  Converse,  5  Gray,  336 ;  Greenwood  v.  Coleman,  34  Ala. 
150 ;  Churchill  v.  Corker,  25  Ga.  479.  See  Vallette  v.  Bennett,  69  111. 
336.  And  whenever  the  active  duties  required  of  the  trustee  have  been 
performed  and  the  purpose  of  the  trust  ceases,  having  no  longer  any 
proper  object  to  serve,  the  legal  estate  is  executed  in  the  cestui  que  trust, 
•without  further  action  by  the  court  or  the  trustee.  Stoke's  App.,  SO  Penn. 
St.  337 ;  Dodson  r.  Ball,  60  id.  492  ;  Wells  v.  IMcCall,  64  id.  207 ;  Yar- 
nell's  App.,  70  id.  335;  Meacham  v.  Steele,  93  111.  135.  And  this  is 
always  so  when  an  estate  of  inheritance  or  an  absolute  estate  is  put  in 
trust  for  coverture.  Megargee  v.  Naglee,  64  Penn.  St.  216;  Lynch  v. 
Swayne,  83  111.  336.  If  the  trust  property  is  to  be  sold  and  proceeds  dis- 
tributed to  the  beneficiaries,  there  is  still  an  active  trust,  and  the  estate  is 
not  executed  iu  the  cestui.  Kirklaud  v.  Cox,  04  111.  402  ;  Read  i-.  Power, 
12  R.  I.  16. 

475 


§  320.]  ESTATE   OF   THE   TRUSTEE.  [CHAP,   X. 

and  where  it  is  necessary  to  enlarge  an  estate  although  there 
are  no  words  of  inheritance,  courts  have  been  obliged  to  re- 
sort to  different  expedients  to  avoid  the  technical  rules  of 
law  upon  the  subject  of  inheritances.^  In  those  States  where 
no  technical  or  other  words  are  necessary  to  convey  a  fee  no 
difficulties  arise. 

1  Williams  v.  First  Presby.  Soc,  1  Ohio  St.  498;  Rutledge  v.  Smith, 
1  Busb.  Eq.  283 ;  Co.  Litt.  385,  386;  1  Prest.  Touchstone,  182;  Rawle  ou 
Covenants,  344;  Shaw  v.  Galbraith,  7  Penu.  St.  112. 


476 


CHAP.    XI.]  PROPERTIES   OF   THE   LEGAL   ESTATE.  [§  321. 


CHAPTER    XI. 

PROPERTIES   AND   INCIDENTS   OF   THE   LEPxAL   ESTATE   IN   THE 
HANDS   OF   TRUSTEES. 

§  321.     Conimon-law  properties  attach  to  estates  in  trustees. 

§  322.  Dower  ami  curtesy  in  trust  estates. 

§§  323,  324.  Dower  and  curtesy  in  equitable  estates  of  cestui  que  trust. 

§  325.  Forfeiture  and  escheat  of  trust  estates. 

§  326.  Trustees  must  perform  duties  of  legal  owners. 

§  327.  Forfeiture  and  escheat  of  the  equitable  estates  of  cestui  que  trust. 

§  328.  Suits  concerning  legal  title  must  be  in  name  of  trustee. 

§  329.  Who  has  possession  and  control  of  trust  estates. 

§§  330,  331.  Who  has  possession  of  personal  estate.      Rights  and  privileges  of 
trustees. 

§  332.  Who  proves  debt  against  bankrupt. 

§  333.  Who  has  the  right  of  voting. 

§  334.  Trustee  may  sell  the  legal  estate. 

§335.  May  devise  the  legal  estate.     But  see  §341. 

§  336.  By  what  words  in  a  devise  the  trust  estate  passes. 

§  337.  Where  a  trust  estate  jjasscs  by  a  devise,  and  where  not. 

§  338.  The  interest  of  a  mortgagee  in  fee. 

§  339.  Propriety  of  devising  a  trust  estate. 

§  340.  Whether  a  devisee  can  execute  the  trust. 

§  341.  Rule  in  New  York,  &c. 

§  342.  Where  a  testator  has  contracted  to  sell  an  estate. 

§§  343,  344.  Rights  of  the  last  surviving  trustee,  and  his  heirs  or  executors. 

§  345.  Trust  property  does  not  pass  to  bankrupt  trustee's  assignee. 

§  346.  A  disseizor  of  a  trust  estate  is  not  bound  by  the  trust. 

§§  347,  348.  Merger  of  the  equitable  and  legal  titles. 

§§  349,  350.  Presumption  of  a  conveyance  or  surrender  by  trustee  to  cestui  que 

trust. 
§§  351-353.  Where  the  presumption  will  be  made,  and  where  not. 

§  354.  Must  be  some  evidence  on  wliicli  to  found  the  presumption. 

§  355.  Is  made  in  favor  of  an  equitable  title,  not  against  it. 

§  321.  As  a  general  rule,  the  legal  estate  in  the  hands  of 
a  trustee  has  at  common  law  precisely  the  same  properties, 
characteristics,  and  incidents,  as  if  the  trustee  were  the  abso- 
lute beneficial  owner.  The  legal  title  vests  in  him,  together 
with  all  the  appurtenances  and  all  the  covenants  that  run 
with  the  land.^    The  trustee  may  sell  and  devise  it,  or  mort- 

^  Dcvin  i".  Ilenderchott,  32  Iowa,  19"2. 

•477 


§  321.]  PROPEKTIES   OF   THE   TRUST   ESTATE.         [CHAP.    XI. 

gage  it,  or  it  may  be  taken  on  execution.  It  may  be  for- 
feited, and  it  will  escheat  on  failure  of  heirs,  and  so  it  will 
descend  to  heirs  on  the  death  of  the  trustee.^  All  these 
properties  and  incidents  attach  to  the  legal  estate  at  common 
law,  whether  in  the  hands  of  a  trustee  or  of  an  absolute 
owner;  but  these  incidents  do  not  generally  interfere  with 
the  proper  execution  of  the  trust,  for  all  conveyances  and  all 
incumbrances  made  or  imposed  upon  the  estate  by  the  trus- 
tee, for  other  purposes  than  those  of  the  trust,  or  in  breach 
of  the  trust,  are  utterly  disregarded  by  a  court  of  equity, 
whatever  may  be  the  effect  of  such  conveyances  or  incum- 
brances in  a  court  of  common  law.^  And  as  the  trustee  may 
in  a  court  of  law,  as  a  general  rule,  deal  with  the  legal 
estate  in  his  hands,  as  if  he  was  the  absolute  owner,  so  the 
cestui  que  trust  in  a  court  of  equity  may  deal  with  the  equi- 
table estate  in  him:  he  is  the  beneficial  and  substantial 
owner,  and  in  the  absence  of  any  disability,  — that  is,  if  he 
is  sui  juris,  —  he  may  sell  and  dispose  of  it ;  and  any  legal 
conveyance  of  it  will  have  in  equity  the  same  operation  upon 
the  equitable  estate  as  a  similar  conveyance  of  the  legal  estate 
would  have  at  law  upon  the  legal  estate.^  (a)  While  a  trust 
for  the  general  benefit  of  one  sui  juris,  not  confined  to  main- 
tenance, may  create  a  transmissible  interest,  yet  a  trust  for 
the  maintenance  of  an  imbecile  son  will  not  create  a  trans- 
missible interest,  although  the  will  contains  a  limitation 
over  to  the  issue  of  such  son.*  In  case  of  a  trust  for  the  use 
of  a  married  woman  as  if  she  were  sole,  the  husband  has  no 
control  over  the  property,  and  cannot  of  himself  lease  or 
otherwise  dispose  of  it.^ 

1  Zabriskie  v.  Morris  &  Essex  R.  Co.,  33  N.  J.  Eq.  22. 

2  Leake  v.  Leake,  5  Ir.  Eq.  366. 

8  Matthews  v.  Wardel,  10  G.  &  J.  443;  Burgess  v.  Wheate,  1  Eden, 
226;  Croxall  v.  Sherard,  5  Wall.  268;  Reid  v.  Gordon,  3.5  Md.  184;  Bote- 
ler  V.  Allington,  1  Bro.  Ch.  72;  Campbell  v.  Prestons,  22  Grat.  396. 

*  Gray  v.  Corbit,  4  Del.  Ch.  135. 

6  Panill  V.  Coles,  81  Va.  380. 

(a)  See  Robinson  v.  Pierce  (Ala.),  24  So.  984. 

478 


CIIAr.  XI.]   DOWEU  AND  CURTESY  IN  EQUITABLE  ESTATES.   [§  323. 

§  322.  The  legal  estate  in  the  hands  of  a  trustee  was  sub- 
ject at  common  law  to  dower  and  curtesy ;  ^  but,  as  those  who 
take  in  dower  or  curtesy  take  by  operation  of  law,  they  are 
subject  to  the  same  equities  as  the  original  trustee ;  therefore, 
if  the  widow  of  a  trustee  should  take  dower  in  a  trust  estate, 
she  would  take  her  dower  suljjcct  to  the  same  trusts  that  the 
estate  was  under  in  the  hands  of  her  husband.  It  would 
thus  be  of  no  benefit  to  her;  and  it  is  now  understood  to  be 
the  equitable  rule,  that  a  widow  has  no  dower  in  the  lands 
held  by  her  husband  as  trustee,  and  the  same  observations 
apply  to  the  right  of  curtesy  in  trust  estates.2(rt)  If,  how- 
ever, the  equitable  estate  meets  the  legal  estate  in  the  same 
holder,  the  equitable  merges  in  the  legal  estate,  and  dower 
and  curtesy  will  attach;^  and  so  they  will  attach  so  far  as 
there  is  a  beneficial  interest  in  the  trustee.* 

§  323.  "While  speaking  upon  this  subject,  it  may  be  said 
that,  until  lately,  in  England,  the  widow  of  a  cestui  que  trust 
had  no  dower  in  his  equitable  estate,  or  his  equitable  fee  in 
lands. ^  A  widow  was  not  dowablc  of  a  use,  and  lands  were 
frequently  conveyed  to  uses  to  defeat  the  right  of  dower. ^ 

^  Bennett  v.  Davis,  2  P.  Wms.  319;  Noel  v.  Jevon,  Freem.  43;  Nash 
V.  Preston,  Cro.  Car.  100;  Casborne  v.  English,  2  Eq.  Cas.  Ab.  728;  Ilinton 
V.  Ilinton,  2  Ves.  G31 ;  1  Sugd.  V.  &  P.  358. 

2  King  V.  Bushnel,  121  111.  656 ;  Derush  v.  Brown,  8  Ham.  412;  Green 
V.  Green,  1  id.  249 ;  Cooper  v.  Whitney,  3  Hill,  97 ;  Powell  v.  Monson,  etc., 

3  Mason,  364;  Bartlett  v.  Gouge,  5  B.  Mon.  152;  Cowman  v.  Hall,  3  Gill 
&  J.  398;  llobison  v.  Codmau,  1  Sumn.  129;  Dean  v.  Mitchell,  4  J.  J. 
Marsh.  451 ;  Ray  v.  Pung,  5  B.  &  Aid.  561 ;  Gomez  v.  Tradesmen's  Bank, 

4  Sandf.  102. 

«  Ilopkinson  v.  Dumas,  42  N.  II.  303. 

*  4  Kent,  43,  46 ;  Prescott  i'.  Walker,  16  N.  H.  343. 

6  Dixon  V.  Saville,  1  Bro.  Ch.  326;  Maybury  v.  Brien,  15  Pet.  38  ; 
D'Arcy  r.  Blake,  2  Sch.  &  Lef.  387;  2  Eq.  Cas.  Ab.  384  ;  4  Kent,  43;  1 
Rop.  Hus.  &  Wife,  354;  Banks  v.  Sutton,  2  P.  Wms.  716,  was  overruled; 
Park  on  Dow.  138.  In  Pennsylvania,  however,  a  wife  can  have  dower  iu 
both  legal  and  equitable  estates.     Dubs  v.  Dubs,  31  Penn.  St.  154. 

0  Wms.  Real  Prop.  134-136 ;  Perkins,  §  349. 

(a)  See  Lewin  on  Trusts  (10th  ed.),  900;  1  Ames  on  Trusts  (2d 
ed.),  374,  375,  383. 

479 


CHAP.    XI.]  PROPERTIES   OF   THE   TRUST   ESTATE.  [§  324 

Thus,  if  a  man  before  marriage  conveyed  his  lands  to  trustees 
upon  trust  for  himself  and  his  heirs  in  fee,  or  if  after  mar- 
riage he  purchased  lands,  and  took  the  conveyance  to  a  trus- 
tee upon  a  trust  for  himself  and  his  heirs,  his  wife  had  no 
right  of  dower.  1  But  if  lands  were  settled  on  trustees  upon 
a  trust  for  a  woman  and  her  heirs  in  fee,  her  husband  was 
entitled  to  his  curtesy. ^  This  anomaly  grew  up  from  an 
attempt  to  give  to  equitable  estates  the  same  incidents  that 
belong  to  legal  estates ;  but  when  it  was  proposed  to  assign 
dower  to  a  widow  out  of  her  husband's  equitable  estate,  it 
was  found  that  it  would  disarrange  so  many  titles  and  estates 
that  the  attempt  was  abandoned.  The  same  inconvenience 
did  not  arise  in  allowing  curtesy  to  a  husband,  for  the  reason 
that  a  wife  could  not  convey  her  equitable  interests  without 
her  husband  joining  in  the  act,  and  thus,  to  allow  him  cur- 
tesy would  not  affect  titles  to  any  considerable  extent.^  But 
by  a  late  statute  a  wife  is  now  dowable  in  equity  of  all  the 
lands  in  which  her  husband  dies  possessed  of  a  beneficiary 
interest.* 

§  324.  The  general  rule  in  the  United  States  is,  that  a  wife 
is  dowable  in  equity  in  all  lands  to  which  the  husband  had 
a  complete  ^  equitable  title  at  the  time  of  his  death. ^  (a)    This 

1  Co.  Litt.  208  a  (n.  105). 

2  D'Arcy  v.  Blake,  2  Sch.  &  Lef.  387;  Chaplin  v.  Chaplin,  3  P.  Wms. 
234 ;  Att.  Gen.  v.  Scott,  t.  Talb.  139  ;  Watt  v.  Ball,  1  P.  Wms.  108 ;  Sweet- 
apple  V.  Bindon,  2  Vern.  536 ;  Cunningham  r.  Moody,  1  Ves.  174 ;  Dodson 
V.  Hay,  3  Bro.  Ch.  405. 

3  Chaplin  v.  Chaplin,  3  P.  Wms.  234;  Att.  Gen.  v.  Scott,  t.  Talb.  139; 
Burgess  v.  Wheat,  1  Ed.  196;  Dixon  v.  Saville,  1  Bro.  Ch.  327;  Banks  v. 
Sutton,  2  P.  Wms.  713 ;  Casburne  v.  Casburne,  2  J.  &  W.  204 ;  Watt  v. 
Ball,  1  P.  Wms.  109 ;  D'Arcy  v.  Blake,  2  Sch.  &  Lef.  388. 

*  3  &  4  Wm.  IV.,  c.  105 ;  1  Spence,  Eq.  Jur.  505. 

5  It  must  be  such  a  title  as  equity  would  enforce.  Efland  v.  Efland,  96 
N.  C.  488. 

6  Shoemaker  v.  Walker,  2  Serg.  &  R.  554 ;  Dubs  v.  Dubs,  31  Penn.  St. 
154 ;  Reid  v.  Morrison,  12  Serg.  &  R.  18 ;  Miller  v.  Beverly,  1  Hen.  &  M. 

(a)  Land  purchased  by  a  husband    another  person  by  his  direction  to 
with  his  own  money  and  conveyed  to    defeat  dower  is,  under  a  statute  by 
480 


CHAP.  XI.]    DOWER  AND  CURTESY  IN  EQUITABLE  ESTATES.    [§  324. 

rule,  it  is  presumed,  would  aitply  in  nil  the  States  where  the 
coinniou-law  i»i'inci])les  of  dower  previiil,  except  in  Maine  aiid 
Massachusetts,  where  a  wife  is  not  entitled  to  dower  in  Ikm- 
husband's  ecjuitaljle  estates.^  The  husband  also  in  most 
States  has  curtesy  in  the  equitable  estates  of  his  wife.^  But 
the  wife  must  be  actually  in  possession  of  her  equitable  in- 
terest: a  mere  right  not  in  possession  is  not  enough  to  entitle 
the  husband  to  curtesy.^     But  the  husband's  curtesy  will  not 

3CS ;  Clairbornc  r.  Henderson,  3  id.  322 ;  Lawson  v.  Morton,  6  Dana, 
•J71 ;  Bowie  v.  Berry,  1  Md.  Ch.  452;  Miller  r.  Stump,  3  Gill,  304;  Ilaw- 
ley  I'.  James,  5  Taige,  318;  Thompson  v.  Thompson,  1  Jones  (N.  C), 
430;  Gully  v.  Ray,  18  Ky.  113;  Barnes  v.  Gay,  7  Iowa,  26;  Lewis  v. 
James,  S  Humph.  537  ;  Kowton  c.  Rowton,  1  Hen.  &  M.  92  ;  Gillespie  v. 
Somerville,  3  St.  &  P.  447  ;  Robinson  c.  .Miller,  1  B.  Mon.  93 ;  Smiley  v. 
Wright,  2  Ohio,  512 ;  Davenport  v.  Farrar,  1  Scam.  314 ;  Bowers  v. 
Keesecker,  14  Iowa,  301  ;  Peay  v.  Peay,  2  Rich.  Eq.  409 ;  Mershon 
V.  Duer,  40  N.  J.  Eq.  333,  a  resulting  trust  in  husband. 

1  Hamlin  v.  Hamlin,  16  Maine,  141;  Reed  v.  Whitney,  7  Gray,  533; 
Lohdell  t'.  Hayes,  4  Allen,  187. 

-  Tillinghast  v.  Coggeshall,  7  R.  I.  383:  Nightingale  v.  Hidden,  id. 
115;  Dubs  V.  Dubs,  31  Penn.  St.  154;  Alexander  v.  Warrance,  17  Mo. 
228;  Robinson  r.  Codman,  1  Suran.  128 ;  Gardner  v.  Hooper,  3  Gray,  404  ; 
Houghton  V.  Ilapgood,  13  Pick.  154;  Rawlings  o.  Adams,  7  Md.  54  ;  and 
see  Fletcher  v.  Ashburner,  1  Bro.  Ch.  503,  and  Amer.  notes ;  1  Green. 
Cruise,  147,  n  ;  Gushing  v.  Blake,  30  N.  J.  Eq.  689. 

^  Parker  v.  Carter,  4  Hare,  413  ;  Sartill  v.  Robeson,  2  Jones,  Eq.  510  ; 
Pitt  V.  Jackson,  2  Bro.  Ch.  51  ;  Morgan  v.  Morgan,  5  Madd.  408;  4  Kent, 
Com.  31. 

which    such     a    naked    trust     "  is  the  cestui  que  trnat  cannot  be  ."seized 

deemed     a    direct    convej'ance    or  thereof  daring  the  parties'  married 

devise  to  the   beneficiary,"  subject  life.     Kenyon  v.  Kenyon,  17  R.  I. 

to  dower.     Stroup   v.    Stroup,  140  539.     An   inchoate  right  of  dower 

Ind.  179,  185.     Contra,  xinder  the  is  not  such  an  interest  in  land  that, 

New  York  statute.  Phelps  v.  Phelps,  when  the  land  is  taken  by  the  right 

143   N.  Y.  197.     The  widow  of   a  of  eminent   domain,  the  wife   can 

cestui   que   trust   is   not   entitled   to  apply  to  a  court  of  equity  to  obtain 

dower  when  there   is  an   equitable  the  benefit  of  such  interest.     Flynn 

conversion  of  land  bought  by  the  v.     Flynn,    171    Mass.    312 ;     see 

trustee  into  personalty.     Hunter  v.  Wheeler  v.  Kirtlaud,  27  N.  J.  Eq. 

Anderson,  152    Penn.  St.  3S6.     So  534. 
when  trust  realty  is  so  devised  that 

VOL.  I.  —  31  4S1 


§  325.]  PROPERTIES   OF   THE   TRUST   ESTATE.         [CHAP.    XI. 

be  defeated  by  the  negligence  of  the  trustee,  as  where  money 
is  directed  to  bo  hxid  in  land  in  such  manner  that  the  hus- 
band would  have  been  entitled  to  his  curtesy,  and  the  trustee 
neglected  to  invest  the  money  during  the  life  of  the  wife, 
the  husband  was  held  to  be  entitled  to  his  curtesy. ^  Nor  will 
a  trust  for  the  separate  use  of  the  wife  exclude  the  husband's 
curtesy,  if  at  her  decease  the  estate  is  to  go  to  her  heirs.  ^ 

§  325.  At  common  law  if  a  person  holding  land  committed 
treason  or  felony,  he  forfeited  his  land  to  the  crown ;  and  if 
he  died  without  heirs,  the  land  escheated  to  the  crown  or  to 
his  superior  lord.  Exactly  the  same  incidents  applied  to 
land  held  in  trust  for  another,  if  the  trustee  committed  a 
treason  or  felony,  or  died  without  heirs.  ^  This  rule  of  law 
has  been  changed  in  England  by  statute.*  At  the  present 
day  the  land  either  will  not  be  forfeited  or  escheat,  or  the 
crown  or  superior  lord  will  take  it  subject  to  the  same  equi- 
ties under  which  the  trustee  held  it.  In  the  United  States, 
either  the  land  would  not  be  forfeited  or  escheat,  by  reason 
of  the  failure  or  incapacity  of  the  trustee  or  his  heirs,  or  the 
State  would  hold  it,  subject  to  all  the  equities  it  was  under 
in  the  hands  of  the  trustee.  It  might  not  go  to  the  State, 
for  the  reason  that,  if  trustees  are  wanting,  courts  will  ap- 
point new  trustees ;  and  if,  for  any  reason,  the  trust  estate 
should  vest  in  the  State,  care  would  be  taken  that  all  the 
rights  of  the  cestui  que  trust  should  be  protected.     There  are 

^  Sweetapple  v.  Bindon,  2  Vern.  536;  Dod?on  v.  Hay,  3  Bro.  Ch.  405; 
Parker  v.  Carter,  4  Hare,  413;  Casborne  v.  Scarfe,  1  Atk.  609. 

2  Roberts  v.  Dixwill,  1  Atk.  609;  Hearle  v.  Greenbank,  3  Atk.  715; 
Morgan  v.  Morgan,  5  Madd.  408  ;  Follett  v.  Tyrer,  14  Sim.  125;  Bennett 
V.  Davis,  2  P.  Wms.  316;  Tillinghast  v.  Coggeshall,  7  R.  I.  383. 

3  Burgess  v.  Wheat,  1  Ed.  177  ;  1  Bro.  Ch.  123  ;  Hovenden  v.  Annesley, 
2  Sch.  &  Lef.  617;  Eales  v.  England,  Pr.  Ch.  200  ;  Pawlett  v.  Att.  Gen. 
Hard.  467;  Att.  Gen.  v.  Leeds,  2  M.  &  K.  243;  Penn  v.  Baltimore,  1  Ves. 
453;  Williams  v.  Lonsdale,  3  Yes.  Jr.  7.52;  Reeves  v.  Att.  Gen.,  2  Atk. 
223;  Geary  I'.  Bearcroft,  Cart.  67-,  King  u.  Mildmay,  5  B.  &  Ad.  254; 
AVilks's  Case,  Lane,  54;  Scoundenr.  Hawley,  Comst.  172. 

^  4  &  5  Wm.  IV.  c.  23;  39  &  40  Geo.  III.  c.  88;  Hughes  v.  Wells,  9 
Hare,  749 ;  14  Vic.  c.  60. 
482 


CHAP.    XI.]    ESCHEAT  AND  FORFEITURE  OF  TRUST  ESTATES.    [§  327. 

statutes  in  most  of  the  States  determining  the  rights  of  the 
cestui  que  trust  in  such  cases. 

§  326.  The  trustee  is  so  far  clothed  with  the  legal  title 
and  all  its  iiicidouts,  that  he  must  perform  all  the  duties  of 
the  holder  of  the  legal  estate.^ 

§  327.  Before  the  statute  of  uses,  the  estate  of  the  cestui 
que  use  was  not  forfeited  for  crime,  and  did  not  escheat  upon 
failure  of  heirs;  but  the  feoffee  to  uses  held  the  estate  abso- 
lutely as  his  own. 2  And  the  same  rule  was  afterwards  fol- 
lowed in  regard  to  trusts.^  Although  it  was  enacted  by 
statute  that  the  cestui  que  use  or  cestui  que  trust  should  for- 
feit his  equitable  interest  upon  conviction  for  treason,^  yet 
the  law  never  went  further;  and  if  the  cestui  que  trust  com- 
mitted a  felony^  so  that  he  could  no  longer  claim  his  equi- 
table rights,  the  trustee  continued  to  hold  the  lands  for  his 
own  use  discharged  of  the  trusts.^  And  so  it  was  held,  after 
great  debate  in  Burgess  v.  Wheat,  that  if  the  cestui  que  trust 
left  no  heirs,  the  trust  estate  of  inheritance  did  not  escheat, 
but  that  the  trustee  thenceforth  held  the  estate  discharged  of 
the  trust. ^  This  case  has  been  doubted,''  but  it  has  been 
followed  as  the  law.  ^  (a)  This  is  upon  the  principle,  that 
there  is  no  want  of  a  tenant  to  the  land,  the  trustee  being 
clothed  with  all  the  rights  of  ownership  against  all  the  world 

1  Wilson  V.  Iloare,  2  R.  &  Ad.  350;  Trinity  Coll.  v.  Brown,  1  Vern.  441 ; 

2  Ld.  Raym.  904 ;  Bath  v.  Abney,  1  Dick.  2G0 ;  Carr  v.  Ellison,  3  Atk. 
73  :  1  c/u.  Dig.  305. 

2  Burgess  v.  Wheat,  1  Ed.  190,  per  Sir  Thomas  Clarke,  M.  R. 
8  Att.°Gen.  v.  Sands,  1  Hale,  P.  C.  249. 

*  33  Hen.  VTTT.  c.  20  ;  1  Hale,  P.  C  248. 
6  Att.  Gen.  v.  Sands,  1  Hale,  P.  C  249. 

6  Burgess  v.  Wheat,  1  Ed.  177;  1  Black.  123  ;  1  Bro.  Ch.  123. 
•^  Middleton  v.  Spicer,  1  Bro.  Ch.  201 ;  Fawcet  r.  Lowther,  2  Ves.  300; 
Sweeting  v.  Sweeting,  33  L.  J.  Ch.  211. 

8  Taylor  v.  Haygarth,  14  Sim.  8 ;  8  Jur.  185;  Henchman  v.  Att.  Gen., 

3  Myl."&  K.  485;  Onslow  v.  Wallis,  1  Mac.  &  G.  506;  1  Hall  &  T. 
513;  Rittson  v.  Stordy,  3  Sm.  &  Gif.  230;  Barrow  i'.  Wadkin,  24 
Beav.  1. 

(rt)  See  In  re  Bacon's  Will,  31   Ch.  D.  460. 

483 


§  328.]  PROPERTIES   OF   THE   TRUST   ESTATE.        [CHAP.   XI. 

except  the  cestui  que  trust,  and  those  claiming  under  him. 
But  this  principle  docs  not  apply  to  chattels,  where  there 
can  be  no  tenant,  nor  to  leaseholds,^  nor  to  an  equity  of  re- 
demption. ^  In  the  United  States,  trustees  would  hold  per- 
sonal property  subject  to  the  right  of  the  State  as  ultima 
h.ceres,  in  case  the  cestui  que  trust  died  without  heirs  or  next 
of  kin;  and  it  is  conceived  that  they  would  hold  real  estate 
under  the  same  rule.^ 

§  328.  It  is  the  duty  of  the  trustee  to  defend  and  protect 
the  title  to  the  trust  estate ;  and,  as  the  legal  title  is  in  him, 
he  alone  can  sue  and  be  sued  in  a  court  of  law ;  the  cestui  que 
trust,  the  absolute  owner  of  the  estate  in  equity,  is  regarded 
in  law  as  a  stranger.*  The  rule  is  carried  to  the  extent  that 
the  grantee  of  the  trustee  can  alone  maintain  an  action  upon 
the  legal  title,  although  the  conveyance  to  him  was  a  breach 
of  the  trust.  ^     To  protect  himself,  the  trustee  must  defend  the 

1  Middleton  v.  Spicer,  1  Bro.  Ch.  201 ;  Walker  v.  Denne,  2  Ves.  Jr. 
170  ;  Barclay  v.  Russell,  3  Ves.  424 ;  Henchman  v.  Att.  Gen.,  3  Myl.  & 
K.  485  ;  Taylor  i'.  Haygarth,  14  Sim.  8  ;  Cradock  v.  Owen,  2  Sm.  &  Gif. 
241;  Bishop  v.  Curtis,  17  Jur.  23;  Powell  v.  Merritt,  22  L.  J.  208; 
1  Sm.  &  Gif.  381. 

2  Down  V.  Morris,  3  Hare,  394. 

8  McCaw  V.  Galbraith,  7  Rich.  L.  75;  Darrah  v.  McNair,  1  Ash.  236; 
Matthews  v.  Ward,  10  G.  &  J.  443;  4  Kent,  425;  Crane  v.  Ruder,  21 
Mich.  25. 

4  ]\Iay  V.  Taylor,  6  M.  &  Gr.  261  ;  Gibson  v.  Winter,  5  B.  &  Ad.  96  ; 
Allen  V.  Iralett,  Holt,  641 ;  Goodtitle  v.  Jones,  7  T.  R.  47 ;  Baptist  Soc. 
V.  Hazen,  100  Mass.  322;  Cox  v.  Walker,  26  Me.  504;  Beach  v.  Beach,  14 
Vt.  28;  Moore  v.  Burnet,  11  Ohio,  334  ;  Wright  v.  Douglass,  3  Barb.  59  ; 
Matthews  v.  W^ard,  10  G.  &  J.  443;  Mordecai  v.  Parker,  3  Dev.  425  ;  Finn 
V.  Hohn,  21  How.  481 ;  Hooper  v.  Scheimer,  23  How.  235  ;  Fitzpatrick  v. 
Fitzgerald,  13  Gray,  400  ;  Chapin  v.  Universalist  Society,  8  Gray,  581; 
Crane  v.  Crane,  4  Gray,  .323;  Davis  v.  Charles  River  Railroad,  11  Cush. 
506;  Raymond  v.  Holden,  2  Cush.  268;  Moody  v.  Farr,  33  Miss.  192  ; 
Adler  v.  Sewell,  20  Ind.  598;  Western  R.  R.  Co.  v.  Nolan,  48  N.  Y.  517; 
Church  V.  Stewart,  27  Barb.  553 ;  Ryan  v.  Bibb,  46  Ala.  323  ;  Ponder  v. 
McGruder,  42  Ga.  242  ;  Kirkland  v.  Cox,  94  111.  402. 

5  Reece  v.  Allen,  5  Gilm.  241;  Taylor  v.  King,  6  Munf.  358;  Canoy  u. 
Troutman,  7  Ired.  155;  Gary  r.  AVhitney,  48  Maine,  516;  Matthews  y. 
McPherson,  65  N.  C  189 ;  Phillips  v.  Ward,  51  Mo.  295. 

484 


CHAP.    XI.]  POSSESSION   AND   MANAGEMENT.  [§  328. 

title  if  he  is  sued.  It  is  his  duty  to  give  the  cestui  que  trust 
notice  of  a  suit  hostile  to  his  interests,  and  to  defend  the 
action  in  good  faith.  To  act  otherwise  would  be  a  breach  of 
trust.  ^  A  trustee  may  also  maintain  an  action  for  any  tres- 
pass upon  the  land;^  but  if  the  centui  que  trust  is  in  the 
actual  [jossession  of  it,  he  may  maintain  an  action  for  any 
injury  done  to  his  possession. ^  If,  however,  the  trust  is 
terminated  by  operation  of  law  or  otherwise,  and  the  prop- 
erty has  vested  in  the  cestui  que  trust,  he  may  after  that  time 
maintain  an  action  upon  the  title ;^  and  so  if  there  has  been 
a  conveyance  or  surrender  by  the  trustees  to  the  cestui  que 
trust,^  or  a  presumption  of  a  surrender  from  the  fact  that  the 
purposes  of  the  trust  are  all  accomplished.*'  (a)  If  the  trustee 
is  in  possession,  he  must  sue  for  all  injuries  to  the  posses- 
sion, and  he  is  the  proper  person  to  maintain  the  claim  for 
damages  for  flowing  the  land  under  the  mill  acts,  or  for 
taking  it  for  railroad  purposes,  turnpikes,  or  public  high- 
ways." (J)  In  Pennsylvania,  however,  the  action  of  eject- 
ment is  an  equitable  action,  and  the  cestui  que  trust  may 
maintain  the  suit  if  he  is  entitled  to  possession,  or  it  may 
be  maintained  by  the  trustee.^  (c)     In  a  few  States  there  are 

1  Mackay  v.  Coates,  70  Peiin.  St.  350 ;  Warland  v.  Colwell,  10  R.  I. 
3G9. 

2  Walker  v.  Fawcett,  7  Ired.  44. 

8  Cox  V.  Walker,  26  Maine,  504  ;  Stearns  v.  Palmer,  10  Met.  32;  Second 
Cong.  Soc.  North  Bridgewater  i'.  Waring,  24  Pick.  309. 

*  Nicoll  V.  Walworth,  4  Denio,  385  ;  Matthews  v.  McPherson,  65  X.  C 
189  ;  Lockhart  v.  Canfield,  49  Miss.  470. 

^  Den  ex  d.  Obert  v.  Bordine,  1  Spencer  (N.  J.),  394  ;  Hopkins  v. 
Ward,  6  :\lunf.  38 ;  Doggett  l:  Hart,  5  Fla.  215. 

«  Ibid. 

'  Davis  V.  Charles  River  R.  R.  Co.,  11  Cush.  506  ;  WoodrufE  v.  Orange, 
32  N.  J.  49. 

8  School   Dir.  v.  Dunkleberger,  6    Barr.  29 ;    Presbyterian  Cong.    v. 

(d)  If  a  married  woman  assigns  (i)  See  Lewin  on  Trusts  (10th 

a  mortgage  to  a  trustee,  and  the  ex-  ed.),  828  ;  1   Ames  on   Trusts  (2d 

tent  of  the  trust  cannot  be  definitely  ed.),  255. 

determined,  the  trust  is  presumed  to  (c)  See  Chamberlain   r.  Maynes, 
continue  only  during  her  coverture.  180  Penn.  St.  39  ;  Simmous  c.  Rich- 
Bradford  V.  Burgess  (R.  I.),  38  Atl.  ardson,  107  Ala.  697. 
975. 

485 


§  329.]       PROPERTIES  OF  THE  TRUST  ESTATE.    [CHAP.  XI. 

statutes  or  codes  which  enact  that  parties  beneficially  inter- 
ested in  the  subject-matter  of  the  suit  shall  be  made  the  par- 
ties' plaintiffs;  but  the  right  or  duty  of  trustees,  or  persons 
holding  the  legal  title  in  a  fiduciary  capacity,  to  sue  is  gen- 
erally provided  for.^  Merely  nominal  trustees,  as  officers  of 
a  town  or  parish,  cannot  sue  in  their  own  name.^ 

§  829.  Whether  the  trustees  are  entitled  to  the  possession, 
control,  and  management  of  real  estate,  as  against  the  cestui 
que  trust,  depends  upon  the  whole  scope  of  the  settlement, 
and  the  nature  of  the  duties  which  the  trustees  are  required 
to  perform.  A  fund  in  trust  for  the  sole  use  of  a  person, 
with  power  to  dispose  of  the  fund  by  will,  does  not  give  the 
cestui  a  right  to  recover  possession  of  the  fund  from  the  trus- 
tee.^ If  the  entire  interest  is  vested  in  the  trustees,  and  they 
are  to  manage  the  property,  keep  it  insured,  and  pay  taxes, 
premiums,  annuities,  and  other  charges  out  of  the  income, 
the  court  will  imply  that  the  trustees  are  to  have  the  posses- 
sion, and  will  not  take  it  from  them,  unless  there  is  some 
very  clear  intention  expressed  to  control  such  directions.*  (a) 

Johnston,  1  Watts  &  S.  56 ;  Kennedy  v.  Fury,  1  Dall.  76  ;  Hunt  v.  Craw- 
ford, 3  Pa.  426  ;  Caldwell  v.  Lowden,  3  Brews.  63. 

1  See  Codes  of  New  York  and  Ohio,  McGill  v.  Doe,  9  Ind.  306. 

2  Regina  v.  Shee,  4  Q.  B.  2 ;  Manchester  v.  Manchester,  17  Q.  B.  859; 
Queen  r.  Commissioners,  15  Q.  B.  1012 ;  Connor  v.  New  Albany,  1 
Blackf.  88. 

3  Barkley  v.  Dosser,  15  Lea  (Tenn.)  529. 

*  Tidd  V.  Lister,  3  Madd.  429  ;  Naylor  v.  Arnitt,  1  R.  &  M.  501 ; 
Young  V.  Miles,  10  B.  Mon.  290;  Blake  i-.  Bunbury,  1  Yes.  Jr.  194,  514; 
4  Bro.  Ch.  21 ;  Jenkins  v.  Milford,  1  J.  &  W.  629 ;  Moseley  v.  Marshall, 
22  N.  Y.  200 ;  Marshall  v.  Sladen,  4  De  G.  &  Sm.  468  ;  Matthews  v.  Mc- 
Pherson,  65  N.  C.  189. 

(</)  Now,  in  England,  the  Settled  to  exercise  these  powers  and  dis- 

Land  Acts  have  granted  such  pow-  charge  these  duties  when  there  is  no 

ers  to  and  imposed  such  duties  on  urgent   counter  reason.     See  In  re 

tenants  for  life  that,  if  the  estate  Wythes,  [1893]   2  Ch.    369;    In  re 

and  trustees  can  be  well  protected  Bagot,    [1894]    1    Ch.    177;    In  re 

by  reasonable  safeguards,  an  equi-  Newen,  2  id.  297;  In  re   Bentley, 

table  tenant  for  life  is  to  be  let  into  54  L.  J.  Ch.  782. 
possession  and  enabled  personally 
486 


CHAP.  XI.]        ACTION -CONTROL -EIGHTS.  [§  330 

And  the  trustees  may  purchase  whatever  is  necessary,  and 
cultivate  the  land  instead  of  rentint^  it. ^  If  the  cestui  que 
trust,  or  tenant  for  life,  is  a  female,  the  court  will  continue 
the  possession  in  the  trustees  for  her  protection  in  case  of 
marriage.^  So,  if  the  trustees  themselves  have  a  beneficial 
interest,  or  a  reversion  or  remainder  after  the  death  of  the 
tenant  for  life,  the  court  will  continue  the  possession  in 
thcm.^  {a)  if,  however,  the  plain  intention  of  the  settlement 
is  that  the  cestui  que  trust  is  to  have  the  ])ossession,  then  all 
other  considerations  must  give  way  ;  as,  if  it  is  plain  that  the 
settlor  intended  the  estate  to  be  a  place  of  residence  for  the 
cestui  que  trust,  the  intention  must  be  cnrried  out.*  If  the 
tenant  for  life  takes  a  le(/al  estate,  subject  to  a  charge,  he 
will  of  course  be  entitled  to  the  possession,  so  long  as  he 
discharges  all  incumbrances  thus  put  upon  the  estate.^  But 
if  the  tenant  for  life  allows  the  annuities  or  other  charges  to 
fall  in  arrears,  the  trustees  must  take  possession  for  the 
security  of  the  annuitants,  and  must  continue  the  possession 
until  ample  security  is  made  for  the  future.^  Security  may 
be  required  in  any  case  where  the  tenant  for  life  is  let  into 
possession.'' 

§  830.  The  trustee  is  entitled  to  the  possession  of  all  j)er- 
sonal  securities,  such  as  bonds,  notes,  mortgages,  and  certifi- 

1  Mayfield  r.  Kegour,  21  Md.  241. 

*  Ibid. ;  Weekham  v.  Berry,  o5  Penn.  St.  70. 
8  Ibid. 

*  Tidd  V.  Lister,  5  Madd.  432;  Campbell  v.  Prestons,  22  Grat.  396. 

^  Denton  v.  Denton,  7  Beav.  388;  Blake  v.  Bunbury,  1  Ves.  Jr.  194; 
Tidd  /'.  Lister,  5  Madd.  432. 

6  Ibid. 

'  Ibid. ;  Pugh  V.  Vaughn,  12  Beav.  517  ;  Langstou  v.  Ollivant,  Coop. 
33  ;  Baylies  v.  Baylies,  1  Col.  137. 

(a)  A  trustee  may  sue  to  protect  made  by  him  and  others  in  interest, 

a  remainder  in  th^;  trust  property  as  when  he  had  no  power  to  bind  the 

well  as  the  life  estate  therein.  Leake  remainders.  Bergengren  v.  Aldrich, 

V.  Watson,  58  Conn.  332,     But  spe-  139  Mass.  259.    See  Asche  v.  Asche, 

cific  performance  will  not  be  decreed  113  N.  Y.  232  ;  Bagley  r.  Kennedy, 

against  remaindermen  of  the  trus-  81  Ga.  721. 
tee's  agreement   to   renew   a   lease 

487 


§  330.]      PROPERTIES  OF  THE  TRUST  ESTATE.     [CHAP.  XI. 

cates  of  stocks,  belonging  to  the  trust  estate;  and  he  may 
maintain  an  action  for  their  delivery,  even  against  the  cestui 
que  trust.^  All  personal  actions  for  injury  to  the  personal 
property,  or  for  its  detention  or  conversion,  such  as  trespass,^ 
trover,^  detinue,*  or  replevin,^  must  be  brought  in  the  name 
of  the  trustee,  although  the  possession  is  in  the  cestui  que 
trust,^{a)  and  although  there  may  be  a  defect  in  the  title  of 
the  trustee ; "  for  the  possession  of  the  cestui  que  trust  is  the 
possession  of  the  trustee,  and  in  law  he  is  not  allowed  to  dis- 
pute the  title  or  possession  of  his  trustee.^  The  action  of 
assumpsit  is  an  equitable  action,  and,  generally,  if  a  promise 
is  made  to  one  for  the  benefit  of  another,  the  person  for  whose 
benefit  the  promise  is  made  may  bring  the  action;  but  if  a 
promise  is  made  to  a  trustee  for  the  benefit  of  the  cestui  que 
trust,  the  trustee  alone  can  sue.^  (h)  So  only  those  parties 
can  sue  on  a  contract  with  whom  it  is  made,  unless  it  is 

^  Jones  V.  Jones,  3  Bro.  Ch.  80  ;  Poole  r.  Pass,  1  Beav.  600;  Beach  v. 
Beach,  14  Vt.  28;  Gunn  v.  Barrow,  17  Ala.  743;  White  v.  Albertson,  3 
Dev.  241;  Guphill  v.  Isbell,  8  Rich.  L.  463;  Presley  v.  Stribling,  24  Miss. 
257 ;  Pace  v.  I'ierce,  49  Mo.  393  ;  Ryan  v.  Bibb,  46  Ala.  343  ;  Western 
R.  R.  Co.  V.  Nolan,  48  N.  Y.  513. 

2  McRaeny  v.  Johnson,  2  Fla.  520. 

8  Hower  v.  Geesaman,  17  Serg.  &  R.  251 ;  Poage  v.  Bell,  8  Leigh,  604  ; 
Coleson  v.  Blanton,  3  Hayw.  1.52;  Guphill  v.  Isbell,  8  Rich.  L.  403;  Thomp- 
son V.  Ford,  7  Ired.  418;  Schley  v.  Lyons,  6  Ga.  530. 

*  Jones  V.  Strong,  6  Ired.  367;  Murphy  v.  Moore,  4  Ired.  Eq.  118; 
Chambers  v.  Mauldin,  4  Ala.  477;  Parsons  v.  Boyd,  20  Ala.  112;  Stoker 
V.  Yelby,  11  Ala.  327;  Baker  v.  Washington,  3  Stew.  &  P.  142;  Newman 
V.  Montgomery,  5  How.  (Miss.)  742. 

6  Presley  v.  Stribling,  24  Miss.  527;  Daniel  v.  Daniel,  6  B.  Mon.  230. 

«  Jones  V.  Cole,  2  Bail.  330  ;  Wynn  v.  Lee,  5  Ga.  236. 

'  Rogers  v.  White,  1  Sneed,  69. 

8  White  V.  Albertson,  3  Dev.  241. 

»  Treat  v.  Stanton,  14  Conn.  445 ;  Porter  v.  Raymond,  53  N.  II.  519. 

(«)   The    ceiflui's    possession    of  2  Ch.   172.     The    beneficiary   may 
chattels,    provided   for   by   a   trust  also  sue  in  trover,  if  the  trustee  re- 
instrument,  is  in  law  the  possession  fuses  to  sue.     Anderson   v.  Daley, 
of  the  trustee,  who  may  sue  in  trover  56  N.  Y.  S.  511. 
for    their    conversion,    though    he  (h)   See  1  Ames  on  Trusts  (2d 
has  never  taken  actual   possession  ed.),  258. 
thereof.     Barker  v.  Furlong,  [1S91] 
488 


CHAP.    XI.]  ACTION -CONTROL -RIGHTS.  [§  330. 

negotiable  paper;  therefore,  substituted  trustees  cannot  sue 
upon  a  contract  made  with  their  predecessors  in  tlie  trust, 
but  the  suit  must  be  in  the  names  of  the  parties  with  whom 
it  was  made,  for  the  benefit  of  the  estate.*  Generally,  all 
notices  and  tenders'^  must  be  made  to  the  trustees;  and  they 
must  use  all  due  diligence  in  prosecuting  suits  in  favor  of 
the  estate  and  of  the  cestui  que  trust,  and  they  must  take  the 
proper  care  in  defending  such  suits;  and  if  appeals  are  taken 
from  decrees  or  judgments  in  favor  of  the  estate,  or  of  the 
cestui  que  trust,  they  must  duly  su[)port  the  rights  of  the 
cestui  que  trust  in  whatever  court  the  case  may  be  carried.^ 
If  the  cestui  que  trust  brings  an  action  in  the  name  of  the 
trustee,  the  trustee  may  insist  upon  indemnity  against  the 
costs.*  If  the  trustee  collusively  releases  such  suit  without 
the  consent  of  the  party  beneficially  interested,  the  court  will 
set  aside  the  release.^  So,  if  a  trustee  discharges  a  debt  or 
mortgage  without  payment,  the  court  would  set  aside  the 
discharge;^  and  if  a  trustee  refuses  to  bring  a  suit,  or  to 
allow  his  name  to  be  used,  equity  will  comi)cl  him  to  take 
such  steps  as  the  interest  of  the  estate  and  of  the  cestui  que 
trust  requires.'^  In  all  such  suits  in  the  name  of  the  trustee, 
a  debt  due  from  the  cestui  que  trust  cannot  be  set  off.^(</) 

1  Binney  v.  Pluinly,  5  Vt.  500  ;  Ingersoll  v.  Cooper,  5  Blackf.  420; 
Davant  r.  (iuerard,  1  Spear,  212  ;  Wake  v.  Tinkler,  16  East,  36. 

2  Chalioon  v.  IloUeuback,  16  Serg.  &  II.  425 ;  Henry  i'.  Morgan,  2  Binn. 
497. 

*  Wood  V.  Burnham,  6  Paige,  513. 

*  Ins.  Co.  V.  Smith,  11  Penn.  St.  120;  Annesley  v.  Simeon,  4  Madd. 
390;  Roden  v.  Murphy,  10  Ala.  804. 

6  Anon.  Salk.  2(i0;  Bauerman  r.  Radenius,  7  T.  R.  670  ;  Legh  v.  Legh, 
1  B.  &  P.  447;  Payne  v.  Rogers,  Doug.  407;  Manning  r.  Cox,  7  Moore, 
617 ;  Hickey  v.  Burt,  7  Taunt.  48  ;  Barker  v.  Richardson,  1  Y.  &  J.  362 ; 
Roden  v.  Murphy,  10  Ala.  804;  Greene  v.  Beatty,  Coxe,  142 ;  Kirkpatrick 
V.  McDonald,  11  Penn.  St.  387. 

6  Woolf  r.  Bate,  9  B.  ]\Ion.  210. 

7  Blin  V.  Pierce,  20  Vt.  25;  Cliisholm  r.  Newton,  1  Ala.  371;  Robin- 
son V.  Mauldiu,  11  Ala.  978;  Welch  v.  Maudevilk',  1  Wheat.  233;  Parker 
V.  Kelly,  10  Sm.  &  M.  184;  McCullum  v.  Coxe,  1  Dall.  139. 

8  Wells  r.  Chapman,  4  Sandf.  Ch.  312  ;  Campbell  c.  Hamilton,  4  Wash, 
(a)  See  Loder  v.  Allen,  50  X.  J.     1020 ;  1  Ames  on  Trusts  (2d  ed.) , 

Eq.  631 ;  Harris  v.  Elliott,  48  N.  Y.  S.     270. 

489 


§  332,]      PROPERTIES  OF  THE  TRUST  ESTATE,    [CHAP.  XI, 

If  a  trustee  sue  for  matters  pertaining  to  the  trust  estate,  a 
private  debt  due  from  the  trustee  cannot  be  set  off,^  A  trus- 
tee cannot  set  off  against  the  assignee  of  the  cestui  a  debt  for 
money  lent  by  him  to  the  cestui  before  his  appointment  as 
trustee. 2 

§  331.  The  trustee,  being  liable  for  a  breach  of  the  trust, 
if  he  permits  any  misapplication  of  the  funds  should  of  course 
have  the  possession  and  control  of  all  personal  property.  So 
all  the  duties  and  privileges  which  attach  to  such  property 
pertain  to  him.  If  the  property  consists  of  stocks  in  corpo- 
rations, he  may  attend  corporate  meetings,  vote,  and  hold 
office  by  virtue  of  such  stock."  If  the  trustee  die,  the  per- 
sonal property  devolves  upon  his  executor  or  administrator 
until  the  appointment  of  a  new  trustee,  and  such  executor  or 
administrator  has  a  right  to  vote  upon  stocks  at  corporate 
meetings.*  So  the  trustee  is  rated  or  assessed  for  taxes,  and 
must  see  that  the  taxes  upon  the  trust  property  are  paid. 
The  statutes  of  the  various  States  determine  the  localities 
where  such  property  shall  be  assessed :  real  estate  is  gen- 
erally assessed  in  the  parish,  town,  or  county  where  it  is 
situated;  and  personal  property,  either  in  the  place  of  the 
domicil  of  the  trustee  or  of  the  cestui  que  trust,  as  the  stat- 
utes of  a  State  may  direct.  In  the  absence  of  a  statute,  the 
law  would  look  upon  the  trustee  as  the  owner,  and  assess  the 
property  at  his  domicil,^ 

§  332.  The  trustee  must  prove  a  debt  against  a  bankrupt 
debtor  of  the  estate,  as  he  is  the  person  to  receive  the  divi- 

C.  C.  93  ;  Woolf  v.  Bates,  9  B.  Mon.  211  ;  Beale  v.  Coon,  2  Watts,  183; 
Tucker  v.  Tucker,  4  B.  &  Ad.  745 ;  Porter  v.  Morris,  2  Han-.  509. 

1  Page  V.  Stephens,  23  Mich.  3.57. 

2  Abbott  1-.  Foote,  140  :\Iass.  333. 

'  IMatter  of  Barker,  6  Wend.  509  ;  Re  Phoenix  Life  Assur.  Co.,  2  John. 
&  II.  279. 

4  North  Shore  Ferry  Co. ,  63  Barb.  556  ;  People  v.  Tebbetts,  4  Cow. 
364;  Bailey  r.  Hollister,  26  N.  Y.  112;  Middlebrook  v.  Merchants'  Bank, 
3  Keyes,  135 ;  Runn  r.  Yaughan,  id.  345. 

s  Latrobe  v.  Baltimore,  19  Md.  13  ;  Green  v.  Mumford,  4  R.  I.  313;  and 
see  the  statutes  of  the  various  States. 
490 


CHAP.   Xr.]      SALE   AND   DEVISE   OF  TRUST   PROPERTY.  [§  334 

dciid;^  but  in  sj)ccial  cases  the  concurrence  of  the  ceHtui  que 
trust  may  be  rcciuircd,  as  where  lie  may  havu  a  right  to  re- 
ceive the  payment.^ 

§  333.  In  Enghintl,  trustees  had  at  common  law  the  right 
to  vote  for  local  ofticers  and  for  members  of  parliament,  by 
virtue  of  the  qualification  conferred  upon  them  by  the  trust 
property,  if  it  was  suflicient  in  amount.  Statutes  have, 
however,  changed  the  common  law,  and  given  the  right  in 
most  cases  to  the  cestui  que  trust.  In  the  United  States, 
property  qualifications  of  voters  are  generally  abrogated.^ 

§  334.  Trustees  of  real  or  personal  estate  may,  at  lau; 
sell,  convey,  assign,  or  incumber  the  same,  as  if  they  were 
the  beneficial  owners,"*  and  each  of  several  trustees  may  exer- 
cise all  his  rights  of  ownership.  If  the  trustees  are  joint- 
tenants,  each  may  receive  the  rents, ^  and  each  may  sever  the 
joint-tenancy  by  a  conveyance  of  his  share,°  and  each  may 
collect  the  dividends  on  stocks,  and  on  the  death  of  one,  the 
survivor  may  sell  the  whole  estate,'  The  general  power  of  a 
trustee  to  sell  and  convey  the  estate  is  co-extensive  with  his 
ownership  of  the  legal  title;  and  this  general  power  over  the 
legal  title  is  entirely  distinct  from  the  execution  of  a  special 
power  given  in  respect  to  the  sale  of  an  estate.  Though  the 
trustee  may  thus  sell,  even  in  breach  of  the  trust,  a  convey- 
ance without  consideration  will  not  injure  the  eesttti  que 
trust;  as  the  grantee,  who  is  a  volunteer,  will  hold  upon 
the  same  trusts  as  the  trustee  held,  and  if  the  purchaser  for 
a  valuable  consideration  have  notice  of  the  trust  he  will  still 
hold  the  estate  upon  trust. ^     In  New  York,  however,  a  stat- 

1  Ex  parte  Green,  2  Dea.  &  Ch.  110. 

2  Ex  parte  Dubois,  1  Cox,  310;  Ex  parte  Butler.  Buck,  420;  Ex  parte 
Gray,  4  Dea.  &  Ch.  77S ;  Ex  parte  Dickenson,  2  Dea.  &  Ch.  520. 

*  See  5  Ired.  Eq.  Appendix ;  4  Kent,  Com.  195. 

*  Shortz  V.  Unangst,  3  Watts  &  S.  55  ;  Canoy  v.  Troutman,  7  Ired.  155. 

*  Townley  v.  Sherborne,  Bridg.  35. 

^  Boursot  V.  Savage,  L.  R.  2  Eq.  134. 
^  Saunders  r.  Schmaelzle,  49  Cal.  59. 
8  See  a)Ue,  §  321. 

491 


§  336.]       PROPERTIES  OF  THE  TRUST  ESTATE.    [CHAP.  XI. 

ute  has  converted  the  trustee's  ownership  of  the  legal  title 
into  a  power,  or  power  in  trust  ;i  and  where  a  trust  is  ex- 
pressly created  by  a  written  instrument,  every  sale  in  breach 
or  contravention  of  the  trust  is  declared  to  be  absolutely  void, 
even  if  the  sale  is  under  the  sanction  of  a  court. ^  Whether 
a  trustee  intends  to  convey  an  estate  is  frequently  a  question 
made  upon  conveyances,  and  it  has  been  determined  that  a 
general  assignment  of  all  the  trustee's  estates,  for  the  bene- 
fit of  his  creditors,  does  not  pass  estates  held  by  him  in 
trust.  ^ 

§  335.  As  among  the  incidents  of  the  trustee's  legal  title 
in  the  trust  estate  is  his  power  to  sell  it,  so  he  may  devise  it 
by  his  last  will  and  testament.  The  principal  question  that 
here  arises  is,  whether  the  words  of  the  will  of  a  trustee 
embrace  estates  held  by  him  in  trust,  for  a  trust  estate  will 
not  in  all  cases  pass  by  the  same  words  as  would  pass  the 
bene&cial  ownership;  for  wherever  an  estate  passes,  not  by 
operation  of  law,  but  by  the  intention  of  any  one,  it  is  neces- 
sary to  find  the  intention  from  the  instrument  under  the  cir- 
cumstances in  which  it  is  made ;  and  an  intention  to  devise  a 
trust  estate  is  not  so  readily  inferred  as  an  intention  to  devise 
a  beneficial  estate.  If  the  trust  is  only  a  personal  one,  the 
donor  using  no  words  requiring  continuance  of  the  trust 
beyond  the  life  of  the  immediate  trustee,  the  estate  cannot  be 
devised  by  the  trustee,  but  ceases  at  his  death. ^ 

§  336.  An  assignment  in  general  words  by  a  trustee  of  all 
his  estate  for  his  creditors  will  not  pass  a  trust  estate,  for 
the  reason  that  the  court  will  not  presume  that  the  trustee 

1  Anderson  v.  Mather,  44  N.  Y.  249  ;  New  York,  &c.  v.  Stillman,  30 
X.  Y.  174  ;  Fitzgerald  v.  Topping,  48  N.  Y.  441 ;  Fellows  v.  Ileermans, 
4  Lans.  230 ;  Martin  v.  Smith,  56  Barb.  600  ;  Critton  v.  Fairchild,  41  N.  Y. 
289.  The  law  is  the  same  in  Michigan.  Palmer  v.  Wilkins,  24  Mich. 
328.  See  Jones  v.  Shaddock,  41  Ala  262;  1  Rev.  Stat.  730,  §  65  ;  Briggs 
i;.  Palmer,  20  Barb.  392;  Briggs  v.  Davis,  20  N.  Y.  15;  21  X.  Y.  574. 

■^  Cruger  v.  Jones,  18  Barb.  468;  Lahens  i'.  Dupasseur,  56  Barb.  256. 

3  Ludwig  V.  Highley,  5  Barr,  132  ;  Abbott,  Pet'r,  55  Maine,  480. 

*  Hinckley  v.  Hinckley,  79  Maine,  320. 
492 


CHAP.    XI.]  DEVISE   OF   TRUST   PROPERTY.  [§  337. 

intended  to  commit  a  breach  of  trust  ;^  for  a  similar  reason 
it  has  at  times  been  said  that  a  devise  of  all  a  truKtce's 
estates  in  general  words  would  not  operate  upon  estates  tliat 
he  held  in  trust,  unless  there  appeared  a  positive  intention 
(]iat  they  should  so  pass.^  The  question  was  finally  consid- 
ered by  Lord  Eldon ;  and  after  a  careful  examination,  the 
rule  was  declared  to  be,  that  "  where  the  will  contained  words 
large  enough,  and  there  was  no  expression  authorizing  a  nar- 
rower construction,  nor  any  such  disposition  of  the  estate  as 
it  was  unlikely  a  testator  would  make  of  property  not  his 
own,  in  such  case  the  trust  property  would  pass.  "^  Mr.  11  ill 
states  the  rule,  "that  a  general  devise  of  real  estate  will  pass 
estates  vested  in  the  testator  as  trustee  or  mortgagee,  unless 
a  contrary  intention  can  be  collected  from  the  expressions  of 
the  will,  or  from  the  purposes  or  limitations  to  which  the 
devised  lands  are  subjected."*  This  general  rule  is  acted 
upon  in  the  United  States.^ 

§  337.  Notwithstanding  the  rule,  that  a  trust  estate  will 
pass  by  general  words  in  a  devise,  unless  there  is  something 
in  the  will  to  show  a  contrary  intention,  there  has  continued 
to  be  a  conflict  of  opinion  upon  the  propriety  of  the  rule,  and 
more  conflict  upon  its  application.  But  a  charge  of  debts, 
legacies,  and  annuities  upon  the  estate  devised,  or  a  power 

1  Cook  V.  Tullis,  18  Wall.  332;  Kelly  v.  Scott,  49  N.  Y.  595;  In  re 
McKay,  1  Lowell,  345;  Chase  v.  Chapin,  130  Mass.  128. 

■^  Casborne  v.  Scarfe,  1  Atk.  605  ;  Strode  r.  Russell,  2  Vern.  G25;  Leeds 
V  Munday,  3  Ves.  348;  Ex  parte  Sergison,  4  Ves.  147;  Ex  parte  Bowes, 
cited  note  1  Atk.  605;  rickering  v.  Vowles,  1  Bro.  Ch.  198  ;  Alt.  Gen.  r. 
Buller,  5  Ves.  340. 

8  Braybrooke  v.  Inskip,  8  Ves.  436;  Roe  v.  Reade,  8  T.  R.  118;  Ex 
parte  Morgan,  10  Ves.  101 ;  Langford  r.  Auger,  4  Ilare,  313;  Linsell  v. 
Thacher,  12  Sim.  178;  Ex  parte  Shaw,  8  Sim.  159;  Hawkins  v.  Obeen, 
2  Ves.  559. 

*  Hill  on  Trustees,  2S3. 

""  Taylor  v.  Benham,  5  How.  270;  Heath  v.  Knapp,  4  Barr,  228;  Jack- 
son V.  Delancy,  13  Johns.  537;  Hughes  i'.  Caldwell,  11  Leigh,  342;  Merritt 
V.  Farmers'  Ins.  Co.,  2  Edw.  Ch.  547  ;  Ballard  v.  Carter,  5  Pick.  112;  Asay 
V.  Hoover,  5  Barr,  35;  Richardson  v.  Woodbury,  43  Me.  206;  Draue  v. 
Gunter,  19  Ala.  731. 

493 


§  337.]  PROPERTIES    OF   THE    TRUST    ESTATE.  [CHAP.    XI. 

given  to  soil  it,  is  an  indication  that  the  testator  did  not  in- 
tend tliat  the  trust  estate  should  pass  under  the  words  of  his 
devise,  for  the  reason  that  he  could  not  have  intended  that 
his  devisee  should  do  that  with  the  estate  which  would  be  a 
breach  of  trust/  So,  if  there  is  a  limitation  of  the  estate  in 
strict  settlement,  with  a  great  number  of  complicated  condi- 
tions, contingencies,  remainders,  and  limitations,  it  will  not 
be  presumed  that  a  trustee  intended  to  devise  a  dry  trust  in 
a  legal  title  upon  such  terms,  and  the  estate  will  not  pass 
under  general  words  ;2  so  if  the  devise  is  to  A.  in  tail  with 
remainder  over  in  strict  settlement;^  so  a  devise  to  a  testa- 
tor's nephews  and  nieces  in  equal  shares  as  tenants  in  com- 
mon is  to  a  class  not  ascertained  at  the  date  of  the  will,  and 
will  not  by  general  words  pass  a  trust  estate.^  So  a  devise 
to  a  woman  for  her  separate  use,  (a)  imports  a  beneficial  use, 
and  not  a  dry  legal  estate,  and  the  trust  estate  would  not 
pass  to  her  under  general  words. ^  But  a  devise  to  a  woman, 
her  heirs  and  assigns,  to  her  and  their  own  sole  and  absolute 
use,  passes  the  estate  for  the  reason  that  there  is  nothing 
inconsistent  with  their  holding  the  absolute  use  in  trust  ;^ 
and  a  devise  to  A.  and  B.  to  be  equally  divided  between 
them,  as  tenants  in  common,  and  their  respective  heirs,  will 

1  Rackham  v.  Siddall,  16  Sim.  297;  1  Mac.  &G.  607  ;  Hope  v.  Liddell, 
21  Beav.  18-3  ;  Life  Asso.  of  Scotland  v.  Siddall,  3  De  G.,  F.  &  J.  58;  Wall 
V.  Bright,  1  Q.  &  W.  494 ;  Leeds  v.  Munday,  3  Yes.  348  ;  Ex  parte  Mar- 
shall, 9  Sim.  555  ;  Re  Morley's  Trusts,  10  Hare,  293  ;  Sylvester  v.  Jarman, 
10  Price,  78;  Roe  v.  Reade,  8  T.  R.  118;  Att.  Gen.  v.  Buller,  5  Ves.  339; 
Ex  parte  Morgan,  10  Yes.  101 ;  Ex  parte  Brettell,  6  Ves.  577  ;  Merritt  v. 
Farmers'  Ins.  Co.,  2  Edw.  Ch.  547. 

2  Braybrooke  v.  In.skip,  8  Yes.  434. 

3  Thompson  v.  Grant,  4  Madd.  438 ;  Ex  parte  Bowes,  cited  1  Atk. 
603  ;  Galliers  v.  Moss,  9  B.  &  Cr.  267 ;  Re  Horsfall,  1  McClel.  &  Y.  292. 

4  Re  Finney's  Est.,  3  Gif.  465. 

^  Lindsell  v.  Thacher,  12  Sim.  178 ;  the  case  itself,  not  the  marginal 
note. 

8  Lewis  t'.  Mathews,  L.  R.  2  Eq.  177. 

(a)  No  particular  form  of  words    use.     7n  r<?  Peacock's  Trusts,  10  Ch. 
is  necessary  in  order  to  vest  property    D.  490 ;  Bland  v.  Dawes,  17  id.  794. 
in  a  married  woman  for  her  separate 
494 


CHAP.  XI.]       DEVISE  OF  TRUST  PROPERTY.  [§  339. 

jiass  the  estate.^  A  devise  of  all  my  estates  will  pass  trust 
])r()j)erty.2  So  a  devise  to  A.,  liis  heirs  and  assigns,  to  and 
for  iiis  and  tlieir  own  use  and  benefit;^  and  a  devise  to  A. 
and  her  heirs,  to  be  disjjosed  of,  by  her  will  or  otherwise,  as 
she  shall  think  fit,'*  will  pass  trust  property  under  general 
words,  for  there  is  no  necessary  breach  of  the  trust. 

§  338.  The  interest  of  a  mortgagee  in  fee  in  the  mortgaged 
land  stands  upon  a  somewhat  dilTerent  ground.  The  mort- 
gagee has  a  debt  due  him  which  is  the  principal  thing,  and 
the  mortgage  is  a  beneficial  interest  in  the  land  as  security 
for  the  debt.  This  interest  generally  goes  with  the  debt. 
And  mortgage  estates  will  pass  by  a  general  devise,  notwith- 
standing a  charge  of  debts  and  legacies,  if  the  intent  ajtpcars, 
to  pass  them  as  securities  for  money. ^  But  if  there  are 
special  trusts  for  sale,  or  other  special  charges  annexed  to 
the  devise,  inconsistent  with  the  idea  of  holding  the  estate 
as  security  for  money,  it  would  not  pass  under  a  general 
devise.^ 

§  339.  In  allowing  a  trust  estate  to  pass  under  general 
words  of  a  devise,  it  is  assumed  that  the  testator  docs  not 

^  Ex  -parte  Whiteacre,  cited  Lewin  on  Trusts,  186 ;  1  Saund.  Uses  & 
Tr.  359  ;  Re  Motley's  Trusts,  10  Hare,  293. 

2  Braybrooke  r.  Iiisldp,  8  Ves.  425 ;  Bangs  v.  Sinitli,  98  ]\Iass.  273  ; 
Amory  r.  Meredith,  7  Allen,  397;  Willard  v.  Ware,  10  Allen,  2G3 ;  Stone 
V.  Ilackett,  12  Gray,  237. 

'  Ex  -parte  Shaw,  8  Sim.  159,  Bainbridge  v.  Ashburton,  2  Y.  &  C.  347  ; 
Sharps  n.  Sharpe,  12  Jur.  598 ;  Ex  parte  Brettell,  G  Ves.  577  ;  Heath  v. 
Knapp,  4  Barr,  228 ;  Abbott,  Petitioner,  55  Maine,  580. 

*  Ibid. 

6  Ex  parte  Barber,  5  Sim.  451 ;  Doe  c.  Benett,  6  Exch.  892  ;  Tie  Cantley 
17  Jur.  124  ;  King's  Mort.,  5  De  G.  &  Sm.  644  ;  Knight  v.  Robinson,  2  K.  & 
J.  503;  Ilippen  v.  Priest,  13  C.  B.  (n.  s.)  508;  Re  Arrowsmith,  4  Jur. 
(n.  8.)  1123  ;  Mather  v.  Thomas,  6  Sim.  119  ;  overruling  Galliers  v.  Moss, 
9  B.  &  C.  207 ;  Sylvester  v.  Jarman,  10  Price,  78,  and  Re  Cantley,  17  Jur. 
124;  Ballard  v.  Carter,  5  Pick.  112;  Asay  v.  Hoover,  5  Barr,  35  ;  Richard- 
son V.  Woodbury,  43  Maine,  20G  ;  Field's  Mort.,  9  Hare,  414,  overruling 
Benvoize  v.  Cooper,  10  Price,  78,  and  iu  opposition  to  Doe  v.  Lightfoot, 
8  :\I.  &  W.  553. 

«  Re  Cantley,  17  Jur.  123. 

495 


§  339.]       PROrERTIES  OF  THE  TRUST  ESTATE.     [CHAP.  XI. 

intend  by  his  devise  to  commit  a  breach  of  the  trust.  It  is 
simply  a  question,  whether  the  testator  has  devised,  or  can 
or  should  devise,  a  trust  estate,  or  whether  he  should  allow 
it  to  descend  to  his  heir  or  legal  representatives.  It  was 
said  in  Cook  v.  Crawford,  that  it  was  not  lawful  for  the  trus- 
tee to  dispose  of  the  estate,  but  that  lie  ought  to  permit  it  to 
descend;  that  a  devise  did  not  diifer  from  a  deed  inter  vivos; 
and  that  it  was  only  a  post  mortem  conveyance.  ^  On  the 
other  hand,  it  is  said  that  there  is  a  wide  distinction  be- 
tween a  conveyance  and  a  devise.  That  during  the  trustee's 
lifetime  there  was  a  personal  trust  and  confidence  in  his 
discretion,  which  he  could  not  delegate;  that  the  settlor 
could  have  reposed  no  confidence  in  the  heir,  for  he  could 
not  know  beforehand  who  the  heir  would  be ;  that  if  the 
estate  was  allowed  to  descend,  it  might  become  vested  in 
married  women,  infants,  bankrupts,  or  persons  out  of  the 
jurisdiction  of  the  court;  and  that  therefore  it  could  not  be  a 
breach  of  trust  for  a  trustee  to  devise  the  estate  by  will  to 
persons  capable  of  executing  it,  or  of  transferring  it  to  other 
trustees. 2  (a)  Mr.  Lewin  concludes  from  these  observations, 
that  whether  the  devise  of  the  trust  estate  is  proper  or  not 
depends  upon  the  circumstances  of  each  case.  If  the  heir  is 
a  fit  person  to  execute  the  trust,  the  testator  ought  not  to  in- 
tercept the  descent  and  pass  the  legal  estate  to  another,  and 
especially  not  to  an  unfit  person.  In  such  case  the  estate  of 
the  testator  might  be  liable  for  the  costs  of  restoring  the 
trust  estate  to  its  proper  channel  or  to  proper  trustees.  If, 
however,  the  heir  is  an  unfit  person,  as  an  infant,  bankrupt, 
insolvent,  lunatic,  married  woman,  or  out  of  the  jurisdiction, 
it  may  be  proper  to  devise  the  estate.^  And  this  seems  to  be 
the  result  of  the  authorities.^ 

1  Cook  V.  Crawford,  13  Sim.  98 ;  and  see  Beasley  v.  Wilkinson,  13  Jur. 
649. 

2  Titley  v.  Wolstenholme.  7  Beav.  435 ;  Macdonald  v.  Walker,  14  Beav. 
556 ;  Wilson  v.  Bennett,  5  De  G.  &  Sra.  479. 

8  Lewin  on  Trusts,  187,  188. 

*  Beasley  v.  Wilkinson,  13  Jur.  649. 

(a)  See  Osborne  v.  Rowlett,  13    lett,  15  id.  143;  In  re  Ingleby,  &c., 
Ch.  D.  774 ;  In  re  Morton  and  Hal-    Ins.  Co.,  13  L.  R.  Ir.  326. 
496 


CHAP.    XI.]  DEVISE   OF  TRUST   PKOPEIiTY.  [§  340. 

§  340.  It  docs  not  follow  that  the  devisee  can  execute  the 
trust  from  the  fact  that  the  legal  title  is  devised  to  him,  nor 
does  it  follow  that  the  heir  can  execute  the  trust  from  the 
fact  that  the  legal  title  descends  to  him.  How  far  either 
can  execute  the  trust  depends  upon  the  intention  of  the  set- 
tlor, to  be  gathered  from  the  terms  of  the  instrument.' 
Thus,  if  an  estate  is  so  vested  in  A.  that  A.  alone  shall  j^er- 
ssonally  execute  the  trust,  neither  the  heir  nor  the  devisee  of 
A.  could  execute  it,  although  holding  the  legal  title.^  As  if 
an  estate  is  vested  in  A.  and  his  heirs  upon  a  trust  to  sell, 
and  A.  devises  the  estate,  neither  the  heir  nor  the  devisee 
can  sell :  for  the  heir  has  nothing  in  the  estate  to  sell,  it 
having  gone  to  the  devisee;  and  the  devisee  has  no  power,  he 
not  being  mentioned  in  the  original  settlement.  ^  So,  where 
property  was  vested  in  two  trustees,  their  executors  and  ad- 
ministrators in  trust,  and  the  surviving  trustee  devised  the 
property  to  A.  and  B.,  and  appointed  A.,  B. ,  and  C.  execu- 
tors, the  court  refused  to  hand  over  the  property  to  A.  and 
B.,  for  the  reason  that  devisees  were  not  named  as  parties 
who  could  execute  the  trust ;  and  the  court  refused  to  hand 
it  over  to  the  executors,  for  the  reason  that  the  legal  title 
was  given  away  from  them;  new  trustees  were  therefore 
appointed  to  receive  the  property  and  execute  the  trust.* 
But  where  the  word  "assigns"  is  part  of  the  limitation  of 
the  estate  to  trustees,  as  where  an  estate  is  vested  in  A.,  his 
heirs,  executors,  administrators,  and  assigns  in  trust,  and 
A.  devises  the  estate,  the  devisee  may  execute  the  trust,  for 
the  reason  that  he  comes  within  the  limitation  of  the  persons 
who  may  take  the  trust   property  and   execute   the   trust.  ^ 

1  Abbott,  Pet'r,  55  Maine,  580. 

2  Mortimer  r,  Ireland,  6  Hare,  196  ;  11  Jiir.  721 ;  Ockleston  r.  Heap, 
1  De  G.  &Sra.  640. 

8  Mortimer  v.  Ireland,  6  Ilare,  196;  11  Jiir.  721  ;  Ockleston  v.  Heap, 
1  De  G.  &  Sm.  640;  Cook  v.  Crawford,  13  Sim.  91;  Stevens  v.  Austen, 
7  Jur.  (n.  s.)  873;  Wilson  v.  Bennett,  5  De  G.  &  Sm.  475. 

*  Re  Burtt's  Est.,  1  Dr.  319;  MacdonalJ  v.  Walker,  14  Beav. 
556. 

6  Titley  v.  Wolstenholme,  7  Beav.  425  ;  Saloway  v.  Strawbridge,  1  K. 
&  J.  371 ;  7  De  G.,  M.  &  G.  594. 

VOL.  I. —32  497 


§  341.]  PROrERTIES   OF   THE   TRUST   ESTATE.         [CHAP.    XI. 

This  principle  has  been  doubted  and  criticised,^  but  it  seems 
to  be  acted  upon  in  the  English  courts.^ 

§  341.  In  New  York,  Michigan,  Wisconsin,  Alabama, 
and  Missouri,  (a)  trust  property,  upon  the  death  of  the  sur- 
viving trustee,  does  not  descend  to  the  heir,  nor  can  it  be 
devised,  but  it  vests  in  the  court,  and  will  be  administered 
by  the  court  by  the  appointment  of  new  trustees  to  execute 
the  trust.  2  In  the  other  States,  the  trust  estate  descends  to 
the  heir,  or  vests  in  the  devisee,  as  the  legal  title  must  go 
somewhere  in  the  absence  of  a  statute,  upon  the  death  of  the 
surviving  trustee.*  Courts  in  the  United  States  do  not  have 
occasion  often  to  consider  the  question,  whether  the  heir  or 
devisee  can  execute  the  trust,  as  new  trustees  can  be  ap- 
pointed in  any  case  at  the  desire  of  the  parties,  and,  in  many 
States,  the  trust  property  may  be  vested  in  the  new  trustees 
by  an  order  of  the  court.  In  most  cases,  it  would  simply  be 
a  question  whether  the  words  of  the  will  were  comprehensive 
enough  to  pass  the  trust  estate,  or  whether  it  had  descended 
to  the  heir;  and  this  question  would  be  important  only  in 
determining  who  should  make  a  conveyance  of  the  trust  prop- 
erty to  the  new  trustees,  if  it  became  necessary  that  a  con- 
veyance should  be  made. 

1  Ockleston  v.  Heap,  1  De  G.  &  Sm.  642. 

2  Mortimer  v.  Ireland,  6  Hare,  196 ;  11  Jur.  721 ;  Ashton  v.  Wood, 
3  Sm.  &  Gif.  436;  Hall  v.  May,  3  K.  &  J.  585;  Lane  v.  Debenham,  11 
Hare,  188. 

3  Clark  V.  Crego,  47  Barb.  597  ;  Hawley  r.  Ross,  7  Paige,  103  ;  McCos- 
ker  r.  Brady,  1  Barb.  Ch.  329  ;  People  v.  Morton,  5  Seld.  17G ;  McDougald 
V.  Gary,  38  Ala.  320  ;  Hook  v.  Dyer,  47  Mo.  241.  This  rule  is  confined  to 
real  property.  Trusts  in  personal  property  are  governed  by  the  ordinary 
rules  that  apply  to  them  in  other  States.  Bucklin  v.  Bucklin,  1  N.  Y, 
Dec.  242. 

^  Trusts  of  real  estate,  on  the  death  of  the  trustee,  vest  in  the  heir 
trusts  of  personalty  in  the  executor  or  administrator.  Schenck  v.  Schenck, 
16  N.  J.  Eq.  174. 

(a)  In  Missouri,  the  heirs  of  the  the  property  or  to  have  a  new  trustee 

trustee  take  the  legal  title  upon  his  appointed.     Ewing   v.    Shannahan, 

death,  and  it  is  their  duty  to  care  for  113  Mo.  188. 
498 


CHAP.    XI.]  DEVISE   OF   TRUST  PROPERTY.  [§  343. 

§  342.  If  an  owner  of  real  estate  contracts  to  sell  it,  he 
})Ccomc8  a  trustee  of  the  le<^ul  title  for  the  vendee;  and  if  he 
dies  before  conveying  the  legal  title,  it  will  descend  to  his 
heir  or  heirs,  as  the  legal  title  must  vest  somewhere;  and 
so  he  may  devise  it;  and  the  heir,  in  case  it  descends,  and 
the  devisee,  in  case  it  is  devised,  may  be  called  upon  to  con- 
vey it  to  the  vendee.^  In  Massachusetts,  there  is  a  statute 
authorizing  the  vendor's  executor  or  administrator  to  convey 
such  estate,  under  the  direction  of  the  court  of  probate. ^ 

§  343.  Trust  property  is  generally  limited  to  trustees, 
as  joint-tenants ;  and  if  by  the  terms  of  the  gift  it  is  doubt- 
ful, whether  the  trustees  take  as  joint-tenants,  or  tenants  in 
common,  courts  will  construe  a  joint-tenancy  if  possible,  on 
account  of  the  inconvenience  of  trustees  holding  as  tenants 
in  common ;  and,  where  statutes  have  abolished  joint-tenancy, 
an  exception  is  generally  made  in  the  case  of  trustees.  And 
courts  will  not  allow  a  process  for  the  partition  of  a  trust 
estate.'^  Therefore,  upon  the  death  of  one  of  the  original 
trustees,  the  whole  estate,  whether  real  or  personal,  devolves 
upon  the  survivors,  and  so  on  to  the  last  survivor;  and  upon 
the  death  of  the  last  survivor,  if  he  has  made  no  disposition 
of  the  estate  by  will  or  otherwise,  it  devolves  u])on  his  heirs 
if  real  estate,  and  upon  his  executors  or  administrators  if  it 
is  personal  estate.^  (a)  The  title  in  the  surviving  trustee  is 
complete,  and  no  breaches  of  trust  after  the  death  of  his  co- 

1  Wall  I'.  Bright,  IJ.  &  W.  494;  Read  r.  Read,  8  T.  R.  118. 

2  Gen.  Stat.  c.  117,  §§  5  and  G  ;  Reed  r.  Whitney,  7  Gray,  533. 

8  Baldwin  v.  Humphrey,  44  N.  Y.  GOO ;  Saunders  v.  Schmaelzle,  49 
Cal.  59. 

*  Whiting  V.  Whiting,  4  Gray,  236 ;  Moses  v.  Murgatroyd,  1  Johns. 
Ch.  119;  De  Peyster  v.  Ferrars,  11  Paige,  13;  Shook  i'.  Shook,  19  Barb. 
653  ;  Shortz  i;.  Unangst,  3  W.  &  S.  45 ;  Gray  l-.  Lynch,  S  Gill,  404  ;  Maul- 
din  V.  Armstead,  14  Ala.  702;  Powell  r.  Knox,  16  Ala.  3G4  ;  Richeson  v. 
Ryan,  15  III.  13;  Stewart  i'.  Pettus,  10  Mo.  755;  Jenks  v.  Backhouse,  1 
Binn.  91 ;  King  v.  Leach,  2  Hare,  59 ;  Watkins  v.  Specht,  7  Coldw.  585  ; 
Webster  v.  Vanderventer,  6  Gray,  429. 

(a)  See  1  Ames  on  Trusts  (2d  ed.),  346. 

499 


§  344.]  PEOPERTIES   OF   THE   TRUST   ESTATE.         [CHAP.   XI. 

trustees  can  be  charged  upon  their  estate ;  ^  nor  can  the  rep- 
resentatives of  his  cotrustees  interfere  with  his  management 
of  the  trust  estate,  even  if  he  is  insolvent  or  unfit  for  the 
trust.  ^  (a)  The  cestui  que  trust  alone  can  interfere  or  apply 
to  the  court  for  redress  or  relief.  So  all  rights  of  action  are 
in  the  surviving  trustee,  and  he  may  sue  in  his  own  name  or 
as  survivor,  according  as  the  cause  of  an  action  accrued  be- 
fore or  after  the  death  of  his  cotrustees;^  and,  in  case  of 
his  death,  his  executor  or  administrator  may  continue  the 
action.*  The  rule  is  that  actions  must  be  brought  in  the 
names  of  the  parties  to  the  contract.^ 

§  344.  So  absolute  is  the  rule  that  the  heir  or  adminis- 
trator takes  the  trust  property  upon  the  death  of  the  last 
surviving  trustee,  that  a  husband,  as  administrator  of  his 
wife,  takes  the  personal  property  that  she  held  in  trust,  but 
he  must  hold  it  upon  the  original  trust.  ^     In  England,  the 

1  QeQjmst,  §426. 

2  Shook  V.  Shook,  19  Barb.  653. 

8  Richeson  v.  Ryan,  15  111.  13;  Wheatley  v.  Boyd,  7  Exch.  20. 

4  Nichols  V.  Campbell,  10  Grat.  561 ;  Powell  v.  Knox,  16  Ala.  361 ; 
Mauldin  v.  Armstead,  14  Ala.  702. 

5  Robins  v.  Deshon,  19  Ind.  204 ;  King  v.  Lawrence,  14  Wis.  238 ; 
Farrell  v.  Ladd,  10  Allen,  127 ;  Childs  v.  Jordan,  106  Mass.  323. 

«  Ante,  §  264;  Kuster  v.  Howe,  3  Ind.  268. 

(a)  The   estate    of    a    deceased  quently  incurred,  which  he  has  no 

trustee,  who  left  the  trust  fund  in  a  part    in    contracting.       Noyes     v. 

proper  state  of  investment   at  his  TurnbuU,  54  Hun,  26;  130  N.  Y. 

death,  is  not  liable  for  a  breach  of  639.     A  new  trustee,  who  after  his 

trust  subsequently  committed.     Re  appointment     participates    in     the 

Palk,   41  W.    R.  28.      See  Laurel  trustee's   breach  of  trust,  becomes 

County  Court  v.   Trustees,  93  Ky.  liable  with  him.      Riker  v.  Alsop, 

379.     A  retiring  trustee  is  not  liable  27  F.  R.  251 ;  see  U.  S.   Trust  Co. 

for  his  successor's  breach  of  trust  v.  Stanton,  139  N.  Y.  531. 
unless  the  very  breach  of  trust  com-  A  surviving  partner  is  so  far  a 

mitted  was  really  contemplated  by  trustee  that,  if  he  misappropriates 

the  former  when  his  retirement  and  the  firm  assets,  he  may  in  equity  be 

the   new   appointment   took   place,  held   liable    for    breach    of    trust. 

Head  v.  Gould,  [1898]  2  Ch.   250.  Russell  v.  McCall,  141  N.  Y.  437 ; 

Nor  is  he  liable  for  debts  subse-  Darrow  v.  Calkins,  154  N.  Y.  503. 
500 


CHAP.   XI.]         DEVOLUTION   OF   THE   TRUST   ESTATE.  [§  345. 

heir  in  case  of  real  estate  in  trust,  or  the  executor  in  case  of 
pLTsunal,  is  competent  to  adniini.ster  and  execute  the  tru.sts, 
but  they  cannot  execute  discretionary  trusts  confided  person- 
ally  to  the  original  trustee,  unless  the  power  and  confidence 
arc  also  confided  in  them  by  the  instrument.*  In  the  United 
States,  the  heirs  or  executors  "will  take  the  trust  projjerty, 
and  they  must  settle  the  accounts  of  the  testator  in  relation 
to  the  trust.  They  must  also  sec  that  the  ])roperty  is  pro- 
tected and  preserved,  but  they  are  not  under  any  obligation 
to  execute  the  trust.  They  may  decline  the  ofiice,  and  gen- 
erally the  court  will  appoint  new  trustees  to  succeed  to  the 
original  trustees.  If  the  heirs  or  executors  continue  to 
act  as  trustees,  they  will  be  liable  for  no  past  breaches  of 
trust,  but  only  for  breaches  that  occur  under  their  own 
management.^ 

§  345.  It  has  been  before  stated  that  a  general  assignment 
for  creditors  does  not  pass  a  trust  estate.  In  such  case  it 
requires  special  words  to  vest  the  estate  in  an  assignee.  So 
an  assignment  in  Ijankruptcy  of  all  the  trustee's  property 
docs  not  pass  estates  which  the  bankrujit  holds  in  trust.^  (a) 
If  the  bankrupt  by  a  breach  of  trust  has  converted  the  trust 
estate  into  other  property,  the  cestui  que  trust  may  follow  it 
into  the  hands  of  the  assignee,  so  far  as  he  can  identify  the 
particular  property  obtained  by  breach  of  the  trust. ^  (?>)  But 
if  the  trust  property  has  become  so  amalgamated  with  the 
general  mass  of  the  bankrupt's  estate  that  it  cannot  be  traced 

1  Ante,  §  264;  Mansell  r.  Mansell,  Wilm.  36;  Cook  r.  Crawford.  13 
Sim.  91 ;  Hall  v.  Dewes,  Jac.  189 ;  Peytou  v.  Bury,  2  P.  Wms.  62G ; 
Bradford  v.  Belfield,  2  Sim.  264 ;  Cole  v.  Wade,  16  Ves.  45 ;  Sharji  v. 
Sharp,  2  B.  &  A.  405.     See  Townsend  v.  Wilson,  1  B.  &  A.  608. 

2  Baird's  App.,  3  W.  &  S.  459  ;  Scbeuck  v.  Scbenck,  16  N.  J.  Eq.  174  ; 
Hill  «.  State,  2  Ark.  604. 

8  Ante,  §  3oG;  Scott  v.  Surman,  Willes,  402. 

*  Taylor  v.  Plumer,  3  ^I.  &  S.  562 ;  Ex  parte  Sayers,  5  Ves.  169. 

(fl)  See   Bump    on   Bankrui)tcy  {h)  See  Hancock   v.    Smith,  41 

(10th   ed.),    p.    554;    1    Ames    ou    Cli.    D.   4.J6;    Lister  v.  Stubbs,  45 
Trusts  (2d  ed.),  p.  392.  id.  1;  Patten  v.  Bond,  Go  L.  T.  583. 

501 


§  34:6.2  PROPERTIES  OF  THE  TRUST  ESTATE.    [CHAP.  XI. 

or  identified,  the  cestui  que  trust  must  prove  his  claim.  ^  If 
an  assignee  should  get  possession  of  the  trust  estate,  and 
refuse  to  restore  it,  the  trustee,  though  a  bankrupt,  may 
maintain  a  suit  for  its  restoration,  or  the  cestui  que  trust  may 
have  a  bill  for  the  appointment  of  new  trustees,  and  the  con- 
veyance of  the  property  to  them.^  But  if  a  bankrupt  trustee 
has  a  beneficial  interest  in  the  trust  property,  it  will  pass  to 
his  assignee ;  and  the  assignee  will  hold  the  bankrupt's  bene- 
ficial interest  in  trust  for  his  creditors,  and  the  remainder 
of  the  property  in  trust  for  the  other  parties  beneficially 
interested.^ 

§  346.  It  is  now  a  universal  rule  that  all  those  who  take 
under  the  trustee,  except  purchasers  for  a  valuable  consider- 
ation without  notice,  take  subject  to  the  trust,  and  they  must 
either  execute  the  trust  themselves,  or  convey  the  property 
to  new  trustees  appointed  by  the  court.  Thus  the  heir,  ex- 
ecutor, administrator,  devisee,  and  the  assignee  by  deed  or  in 
bankruptcy,  are  bound  by  the  trust;  so  are  those  who  take 
dower  or  curtesy  in  the  trust  estate,  or  a  creditor  who  levies 
an  execution  upon  it.  (a)  If  the  trust  estate  is  forfeited  to 
the  crown  or  the  State,  it  is  still  subject  to  the  trust ;  so  if  it 
escheats  upon  the  failure  of  heirs.  But  a  disseizor  is  not  an 
assignee  of  the  trustee;  he  holds  a  wrongful  title  of  his  own, 
adversely  to  the  trust.  The  cestui  que  trust  has  no  remedy 
in  such  case,  except  to  procure  the  trustee  to  bring  an  action 
upon  his  legal  title  to  recover  the  possession.  The  cestui 
que  trust  could  not  maintain  a  suit  in  equity  to  compel  the 
disseizor  to  hold  upon  the  same  trusts  as  the  trustee;  for 

1  Ex  parte  Dumas,  1  Atk.  232 ;  Ryall  v.  Rolle,  id.  172 ;  Scott  v.  Sur- 
man,  Willes,  403. 

2  Winch  V.  Keely,  1  T.  R.  619 ;  Carpenter  v.  Marnell,  3  B.  &  P.  40. 

8  Carpenter  v.  Marnell,  3  B.  &  P.  40  ;  Parnham  v.  Hurst,  8  M.  &  W. 
743;  D'Arnay  v.  Chesneau,  13  M.  &  W.  809;  Leslie  v.  Guthrie,  1  Bing. 
N.  C.  697;  Boddington  v.  Castelli,  1  El.  &  Bl.  879. 

(a)  See    Freedraan's    S.    Co.   v.  §  437  a,  note ;   Lee    v.    Enos,    97 

Earle,  110  U.  S.  710;  Brandeis  y.  Mich.  276;    Ewing  v.   Shannahan, 

Cochrane,    112   U.    S.   344;    irifra,  113  Mo.  188. 
502 


ClIAI'.    XI.]  MERGER.  [§  347. 

tliore  is  no  privity  between  the  disseizor  and  dissei/ee. ^  (a) 
Tlio  only  remedy  of  tlic  cestui  que  trust  is  a<^ainst  the  trus- 
tee; and  if  he  refuses  to  brin^  an  action  to  recover  the  estate, 
he  may  be  removed  and  a  new  trustee  appointed. 

§  347.  Where  the  legal  and  equitable  estate  in  the  same 
land  becomes  vested  in  the  same  i)erson,  the  equitable  will 
mery;c  in  the  legal  estate;  for  a  man  cannot  be  a  trustee  for 
himself,  nor  hold  the  fee,  which  embraces  the  whole  estate, 
and  at  the  same  time  hold  the  several  jiarts  separated  from 
the  whole. 2  But  in  order  that  this  may  be  true,  the  two 
estates  must  be  commensurate  with  each  other ;  or  the  legal 
estate  must  be  more  extensive  or  comprehensive  than  the 
equitable.  The  equitable  fee  cannot  merge  in  a  j)artial  or 
particular  legal  estate.^  And  there  will  be  no  merger,  if  it 
is  contrary  to  the  intention  of  the  parties.*  (5)     If  A.  should 

^  Finch's  Case,  4  Inst.  85 ;  Gilbert  on  Uses  by  Sugd.  249 ;  Reynolds 
V.  Jones,  2  Sim.  &  S.  20G ;  Turner  v.  Buck,  22  Vin.  Ab.  21  ;  Doe  v.  Price, 
16  ]M.  &  W.  603.  But  the  cestui  que  trust  is  the  beneficial  owner,  and 
the  court  will  protect  him  in  an  entry  and  occupation  against  a  stranger. 
Oatman  i-.  Barney,  46  Vt.  594. 

2  Wadew.  Paget,  1  Bro.  Ch.  .363;  Selby  r.  Alston,  3  Ves.  339;  Philips 
V.  Brydges,  id.  126 ;  Goodright  v.  Wells,  Doug.  771 ;  Finch's  Case,  4 
Inst.  85;  Ilarmood  v.  Oglander,  8  Ves.  127  ;  Creagh  v.  Blood,  3  Jones  & 
L.  133  ;  James  v.  Morey,  2  Cow.  246;  Mason  v.  :Mason,  2  Sandf.  Ch.  433; 
James  r.  Johnson,  6  Johns.  Ch.  417;  Cooper  v.  Cooper,  1  Ilalst.  Ch.  9; 
Healy  i-.  Alston,  25  Miss.  190;  Brown  r.  Bontee,  10  Sm.  &  M.  268;  Lewis 
V.  Starke,  id.  128;  Nicholson  v.  Ilalsey,  1  Johns.  Ch.  422;  Butler  u.  God- 
ley,  1  Dev.  91;  Hopkinson  v.  Dumas,  42  N.  H.  306;  Gardner  v.  Astor,  3 
Johns.  Ch.  53 ;  Downes  v.  Grazebrook,  3  Mer.  208 ;  Ayliff  v.  Murray,  2 
Atk.  59;  Wills  v.  Cooper,  1  Dutch.  (N.  J.)  137;  Ilabergham  v.  Vincent, 
2  Ves.  Jr.  204. 

«  Selby  V.  Alston,  3  Ves.  330;  Hunt  v.  Hunt,  14  Pick.  374;  Donalds 
i\  Plumb,  8  Conn.  453;  James  v.  Morey,  2  Cow.  284  ;  Goodriglit  i'.  Wells, 
Doug.  771 ;  Philips  v.  Brydges,  3  Ves.  125 ;  Robinson  v.  Cuming,  t.  Tal- 
bot, 164;  1  Atk.  475;  Boteler  v.  Allington,  1  Bro.  Ch.  72;  Buchanan  v. 
Harrison,  1  Jon.  &  lien.  662;  Merest  r.  James,  6  Madd.  118;  Ilabergham 
V.  Vincent,  2  Ves.  Jr.  204. 

*  Gardner  v.  Astor,  3  Johns.  Ch.  53  ;  James  v.   Morey,  2  Cow.  246  ; 

(a)  See  Ames  on  Trusts  (2ded.),  (J>)  "  Where  a  purcha.ser  of  prop- 
373.  erty  pays  off  a  charge  on  it,  without 

503 


§  347.] 


PROrEIlTIES    OF   THE    TltUST    ESTATE.  [ciIAP.    XL 


convey  lands  to  B.  in  trust  for  C.  and  her  heirs,  and  C. 
should  be  the  heir  of  B.,  upon  the  death  of  B.  the  legal  title 
would  descend  to  C,  and  thus  both  the  legal  and  equitable 
title  would  meet  in  C.  ;  but  if  C.  was  a  married  woman,  and 
it  was  plainly  the  intention  of  the  grantor  or  settlor,  to  be 
gathered  from  the  whole  instrument,  that  the  trust  should 
not  cease,  but  continue  an  active  trust,  the  court  would  not 
allow  the  equitable  estate  to  merge  in  the  legal,  but  a  new 
trustee   would   be   appointed   to  take  the   legal  title.  ^     Of 

Mechanics'  Bank  v.  Edwards,  1  Barb.  S.  C.  272;  Starr  v.  Ellis,  6  Johns. 
Ch.  393;  Donald  v.  Plumb,  8  Conn.  453;  Den  v.  Vanness,  5  Ilalst.  102; 
Hunt  V.  Hunt,  14  Pick.  374  ;  Kursev.  Yerwarth,  3  Swanst.  608  ;  Saunders 
V.  Bournford,  Fiuch,  424 ;  Thorn  v.  Newman,  3  Swanst.  603 ;  Mole  v. 
Smith,  Jac.  490. 

1  Gardner  v.  Astor,  3  Johns.  Ch.  53 ;  James  v.  Morey,  2  Cow.  246  ; 
Mechanics'  Bank  v.  Edwards,  1  Barb.  S.  C.  272 ;  Starr  v.  Ellis,  6  Johns. 
Ch.  393 ;  Donald  v.  Plumb,  8  Conn.  453 ;  Den  v.  Vanness,  5  Ilalst.  102 ; 
Hunt  V.  Hunt,  14  Pick.  374 ;  Nurse  v.  Yerwarth,  3  Swanst.  608 ;  Saun- 


showing  an  intention  to  keep  it 
alive,  still,  if  its  continuance  as  an 
existing  charge  is  beneficial  to  him, 
it  will  be  treated  in  equity  as  sub- 
sisting, unless  an  intention  to  the 
conti'ary  can  be  inferred  from  the 
terms  of  the  purchaser's  deed  or 
from  other  legitimate  evidence." 
Liquidation  Estates  P.  Co.  r.  Wil- 
loughby,  [1896]  1  Ch.  726,  734; 
[1898]  A.  C.  321.  See  In  re  Doug- 
las, 28  Ch.  D.  327.  Whether  there 
is  a  merger  in  case  of  a  purchase,  or 
the  security  is  to  be  kept  alive  for 
the  benefit  of  the  tran.sferee,  de- 
|5ends,  as  in  other  cases  of  merger, 
upon  the  actual  or  presumed  inten- 
tion of  the  one  in  whom  the  two  es- 
tates are  united.  Hence  there  will 
be  no  merger  against  the  mortga- 
gee's interest.  If  merger  takes 
place,  it  would  seem  clear  that  the 
mortgage  estate,  at  least  where  it 
504 


is  regarded  as  simply  a  lien,  must 
merge  in  the  equity.  Adams  v. 
Angell,  5  Ch.  D.  634  ;  Thorne  v. 
Cann,  [1895]  A.  C.  11  ;  O'Loughlin 
V.  Fitzgerald,  7  Ir.  R.  Eq.  483; 
Boardman  v.  Larrabee,  51  Conn. 
39  ;  Duffy  v.  McGuiness,  13  R.  I. 
595;  Smith  v.  Roberts,  91  N.  Y. 
470 ;  Fellows  v.  Dow,  58  N.  II.  21 ; 
EUinwood  v.  Holt,  60  N.  II.  57; 
Gibbs  V.  Johnson,  104  Mich.  120 ; 
Patterson  v.  Mills,  69  Iowa,  755; 
Coryell  v.  Klehm,  157  111.  462: 
Clark  V.  Clark,  76  Wis.  306;  Cox 
V.  Ledward,  124  Penn.  St.  435 
Chase  v.  Van  Meter,  140  Ind.  321 
Collins  V.  Stocking,  98  Mo.  290 
Hudson  B.  C.  Co.  v.  Glencoe  Co., 
140  ]\Io.  103  ;  Gresham  v.  Ware,  79 
Ala.  192.  See  Dickason  v.  Williams, 
129  ISIass.  182  ;  Keith  v.  AVheeler, 
159  Mass.  161. 


CHAP.    XI.]  MERGER.  [§  348. 

course,  in  law  the  estates  will  merge  wherever  the  interests 
meet;  but  courts  of  equity  will  preserve  the  estates  separate, 
where  the  rights  or  interests  of  the  parties  require  it.  If 
the  trustee  acquires  the  equitable  interest  by  any  breach  of 
his  duty,  or  by  fraud,  courts  will  not  allow  it  to  merge. ^  So 
if  there  arc  intervening  heirs  who  would  be  scjueezed  out, 
the  estates  will  not  merge. ^  So  if  the  legal  estate  comes  to 
the  cestui  que  trust  by  a  conveyance  which  turns  out  to  be 
void,  there  will  be  no  merger.^  Whether  charges  upon  an 
estate,  as  mortgages,  will  merge  in  the  legal  title,  upon  being 
paid  off,  depends  upon  the  intention  of  the  parties,  and  fre- 
quently upon  the  interests  and  equities  between  them.*  If 
a  leasehold  is  held  by  a  wife  in  her  right,  but  is  in  the  occu- 
pation of  her  husband,  and  he  purchases  the  reversion,  there 
will  be  no  merger.^ 

§  .348.  Thus  if  a  tenant  for  life  pays  off  a  charge  or  in- 
cumbrance upon  an  estate,  it  will  be  considered  that,  as  his 
interest  ceases  with  his  life,  he  could  never  have  intended 
that  the  charge  should  be  extinguished,  and  not  survive  for 
the  benefit  of  his  representatives.^  (a)     And  the  same  rule 

ders  V.  Bournford,  Finch,  4'24 ;  Thom  v.  Newman,  3  Swanst.  603;  Mole 
V.  Smitli,  Jac.  490. 

1  1  Spence,  Eq.  Jur.  572. 

2  Lewis  I'.  Stark,  10  Sm.  &  M.  128. 

8  Elliott  I'.  Armstrong,  2  Blackf.  208;  Buchanan  v.  Harrison,  1  John. 
&  II.  GG2  ;  Brandon  i-.  Brandon,  31  L.  J.  Ch.  47. 

4  Hunt  V.  Hunt,  14  Pick.  374;  Johnson  v.  Webster,  4  DeG.,  M.  &  G. 
474  ;  Tyrwhitt  v.  Tyrwhitt,  32  Beav.  244  ;  Morley  v.  Morley,  25  L.  J.  Ch. 
1 ;  Comptou  V.  Oxenden,  2  Ves.  Jr.  264;  Forbes  v.  Moffatt,  IS  Ves.  390 ; 
Morton  v.  Smith,  4  K.  &  J.  630;  Tomlinson  v.  Steers,  3  Mer.  210;  Smith 
V.  Phillips,  1  Keen,  694;  Medley  v.  Horton,  14  Sim.  226;  Brown  v.  Stead, 
5  Sim.  53.3;  Parry  v.  Wripht,  1  S.  &  S.  369;  5  Kuss.  512;  Mocatta  r. 
IMurgatroyd,  1  P.  W.  193;  Greswold  v.  Marshara,  2  Ch.  Cas.  170;  Garnett 
V.  Armstrong,  2  Conn.  &  Laws.  458 ;  Watts  r.  Symes,  16  Sim.  646 ; 
Cooper  V.  Cartwright,  1  John.  679. 

6  Clark  V.  Tennison,  33  Md.  85. 

«  Pitt  V.  Pitt,  22  Beav.  294 ;  Burrell  v.  Egremont,  7  Beav.  205 ;  Red- 

(a)  This  presumption  is  not  re-  for  life  a'ld  the  remainderman  are 
butted  by  the  fact  that  the  tenant    parent  and  child.     In  re   Harvey, 

505 


§  348.]  PEOrEETIES   OF   THE   TRUST   ESTATE.  [CHAP.   XI. 

applies,  though  the  tenant  for  life  may  be  ultimately  entitled 
to  the  reversion  in  fee,  subject  to  remainders  which  fail.^ 
Even  in  this  case,  evidence  may  be  given  that  the  tenant  for 
life  intended  the  charge  to  be  merged  and  extinguished.'^  A 
tenant  in  tail  in  possession  has  the  power  to  convert  the 
estate  into  an  absolute  fee ;  therefore,  if  he  pays  off  an  in- 
cumbrance, the  presumption  is  that  he  intended  it  to  merge.  ^ 
But  if  the  estate  of  the  tenant  in  fee-simple  or  in  tail  is  sub- 
ject to  any  executory  limitations  that  may  defeat  their  estate, 
or  if  they  pay  off  the  charges  under  any  mistake  as  to  their 
title,  the  court  would  not  allow  the  charges  to  merge  or  be- 
come extinguished.^  But  if  a  person  pays  or  takes  up  the 
charges  or  incumbrances,  and  afterwards  the  legal  title 
should  come  to  him,  the  charges  would  merge.  ^  So  if  a 
person,  having  the  legal  title  and  holding  charges  and  incum- 
brances upon  the  estate,  conveys  in  fee  or  in  mortgage,  and 
makes  no  mention  of  the  charges  or  incumbrances,  they 
would  merge  as  between  the  grantor  and  grantee.^  Gener- 
ally, where  the  owner  in  fee-simple  pays  off  a  charge  or 
incumbrance  on  an  estate,  the  presumption  of  law  is  that 
such  charge  or  incumbrance  will   merge ; '  but  if  he  owns 

ington  V.  Redington,  1  B.  &  B.  139 ;  Faulkner  v.  Daniel,  3  Hare,  217 ; 
State  r.  Kock,  47  Mo.  582. 

^  Wyndham  v.  Egremont,  Amb.  753 ;  Trevor  v.  Trevor,  2  Myl.  &  K. 
675. 

2  Astley  V.  Milles,  1  Sim.  298. 

8  St.  Paul  V.  Dudley,  15  Ves.  173 ;  Buckinghamshire  r.  Hobart,  3 
Swanst.  199 ;  Jones  v.  Morgan,  1  Bro.  Ch.  206. 

^  Drinkwater  v.  Combe,  2  S.  &  S.  340 ;  Shrewsbury  v.  Shrewsbury,  3 
Bro.  Ch.  120;  1  Ves.  Jr.  227;  Wigsell  v.  Wigsell,  2  S.  &  S.  361;  Horton 
V.  Smith,  4  K.  &  J.  624  ;  Buckinghamshire  v.  Hobart,  3  Swanst.  199  ; 
Kirkham  v.  Smith,  1  Ves.  528. 

6  Horton  v.  Smith,  4  K.  &  J.  624 ;  Trevor  v.  Trevor,  2  Myl.  &  K.  675 ; 
Wigsell  V.  Wigsell,  2  S.  &  S.  364. 

6  Tyler  v.  Lake,  4  Sim.  351;  Johnson  v.  Webster,  4  De  G.,  M.  &.  G. 
474. 

'  Hood  V.  Phillips,  3  Beav.  513 ;  Pitt  v.  Pitt,  22  Beav.  294 ;  Gunter  v. 

[1896]  1  Ch.  137.      See  In  re  Good-    id.  542  ;  Tn  re  Morley,  id.  738 ;  In  re 
enough,   [1895]  2   Ch.   537;   In  re    Pitcairn,  [1895]  W.  N.  139. 
Crowther,  id.  56 ;  In  re  Cleveland, 

506 


CHAP.    XI.]  SURRENDER.  [§  349. 

only  a  partial  interest,  the  presumption  is  that  the  charge 
was  to  be  kcjjt  on  foot.  ^  Mere  possession  of  the  property  by 
tho  trustee  or  by  the  cestui  que  truat  is  no  evidence  of  a 
merger.  2 

§  349.  Sometimes  where  an  estate  has  been  vested  by  deed 
or  Avill  in  trustees  for  a  cestui  que  trusty  wlietlier  it  is  a  fee 
or  some  lesser  estate,  the  law  will  presume  that  the  trustees 
have  surrendered,  conveyed,  or  assigned  the  estate,  whatever 
it  was,  to  the  cestui  que  trust.^  This  presumption  of  law  is 
necessary  for  the  quieting  of  titles.  If  such  presumptions 
could  not  be  made,  some  titles  would  remain  forever  imper- 
fect. There  might  be  an  outstanding  legal  estate,  which 
would  at  any  time  defeat  the  tenant,  if  there  could  not  be  a 
presumption  of  a  conveyance  or  surrender  by  the  trustee  to 
the  cestui  que  trust.  This  presumption  is  somewhat  different 
from  that  prescription  by  which  one  tenant  Ijy  an  open, 
peaceable,  and  adverse  occupation,  under  a  claim  of  right, 
obtains  the  legal  title  as  against  another  person.  In  such 
case,  after  a  definite  period  of  time,  a  grant  or  conveyance  is 
presumed  in  favor  of  the  tenant  in  occupation,  though  it  may 
bo  well  enough  understood  that  no  such  grant  or  conveyance 
was  ever  made.  So  there  may  be  a  presumption  that  a  trus- 
tee has  conveyed  to  the  cestui  que  trust,  though  such  pre- 
sumption may  not  always  be  founded  on  a  belief  that  such 

Gunter,  23  Beav.  571 ;  Swinfen  v.  Swinfen,  29  Beav.  199  ;  Tyrwhitt  r. 
Tyrwhitt,  32  Beav.  214. 

1  Price  V.  Gibson,  2  Eden,  115;  Swinfen  r.  Swinfen,  29  Beav.  199; 
Corapton  V.  Oxenden,  2  Ves.  Jr.  2G8;  Donisthorpe  v.  Porter,  2  Kden,  162. 

'^  Bros  well  v.  Downs,  11  Fla.  62. 

«  England  v.  Slade,  4  T.  R.  682  ;  Wilson  r.  Allen,  1  J.  &  W.  Oil ;  Xoel 
V.  Bewley,  3  Sim.  103;  Cooke  v.  Salton,  2  S.  &  S.  154;  Hillary  v.  Waller, 
12  Ves.  239;  Lade  v.  Holford,  Bull.  N.  P.  110;  Doe  v.  Ililder,  2  B.  &  A. 
782 ;  Emery  v.  Grocock,  6  Madd.  54  ;  Townshend  v.  Champernown,  1  Y. 
&  J.  583;  Goodtitle  v.  Jones,  7  T.  R.  47;  Doe  r.  Sybourn.  \fi.  2;  Moore 
r.  Jackson,  4  Wend.  59;  Dutch  Church  r.  Mott,  7  Paige,  77  ;  Jackson  r. 
Moore,  13  Johns.  513;  1  Green.  Cruise  Dig.  112;  Matthews  v.  Ward,  10 
Gill  &  J.  443 ;  Jackson  v.  Pierce,  2  Johns.  220 ;  Sinclair  r.  Jackson,  8 
Cow.  513. 

507 


§  351.]       PKOPEKTIES  OF  THE  TRUST  ESTATE.    [CHAP.  XI. 

conveyance  was  actually  made.^  There  is  another  difficulty 
between  trustees  and  cestuis  que  trust  which  does  not  exist 
between  adverse  claimants  of  the  same  legal  title.  The 
titles  of  the  trustee  and  cestui  que  trust  are  not  adverse  to 
each  other,  and  generally  the  possession  of  the  cestui  que  trust 
is  the  possession  of  the  trustee;  at  any  rate  it  is  generally 
consistent  with  the  legal  title  of  the  trustee.  Therefore, 
mere  length  of  time  as  between  trustee  and  cestui  que  trust 
will  afford  no  ground  for  a  presumption  of  a  conveyance  or 
surrender  from  the  trustee  to  the  cestui  que  trust,'^  as  cestuis 
que  trust  may  occupy  the  estate  indefinitely  under  a  merely 
equitable  title. 

§  350.  This  presumption  has  been  discussed  at  length  in 
several  cases,  and  some  difference  of  opinion  has  been  ex- 
pressed ;  ^  {a)  but  it  seems  now  to  be  well  settled  that  three 
circumstances  must  concur  in  order  to  raise  the  presumption 
of  a  conveyance  or  surrender  by  the  trustee  to  the  cestui  que 
trust :  (1)  It  must  have  been  the  duty  of  the  trustee  to  make 
the  conveyance ;  (2)  There  must  be  some  sufficient  reason  to 
support  the  presumption;  (3)  The  presumption  must  be  in 
support  of  a  just  title,  and  not  to  defeat  it. 

§  351.  Thus  where  the  cestui  que  trust  becomes  absolutely 
entitled  to  the  whole  beneficial  interest  in  the  trust  estate, 
and  the  active  duties  of  the  trustee  have  ceased,  the  statute 
of  uses  generally  executes  the  legal  title  of  the  trustee  to  the 
cestui  que  trust,  and  he  obtains  the  legal  as  well  as  the 
beneficial  estate,  (b)     But  there  are  cases  where  the  active 

1  Hillary  v.  Waller,  12  Ves.  252. 

2  Keene  v.  Deardon,  8  East,  263  ;  Goodson  v.  Ellison,  3  Russ.  588; 
Hillary  v.  Waller,  12  Ves.  251 ;  1  Sugd.  V.  &  P.  350,  470  ;  Flournoy  v. 
Johnson,  7  B.  Mon.  694  ;  Doe  v.  Langdon,  12  Q.  B.  719. 

3  Lade  v.  Holford,  Bull.  N.  P.  110  ;  Doe  v.  Syboiirn,  7  T.  R.  2 ;  Good- 
title  L-.  Jones,  id.  49 ;  Doe  v.  Read,  8  T.  R.  118  ;  see  note,  1  Green.  Cniise, 
410 ;  2  Pow.  on  Mort.  491. 

(a)  See  also  M' Queen  v.  Meade,  §§  49-58,  taking  away  the  trustee's 
28  L.  T.  N.  s.  768.  title,    when    merely    nominal,   and 

(b)  The  N.  Y.  Rev.  Stats,  p.  728,    vesting  it  in  the  beneficiary,  do  not 

508 


CHAP.    XI.]  SUIiUENDKR.  [§  351. 

duties  of  the  trustee  having  ceased,  the  legal  title  does  not 
pass  without  a  conveyance.  In  such  cases  it  is  clearly  the 
duty  of  the  trustee  to  convey  the  legal  title  to  the  cestui  que 
trust,  or  to  such  person  as  he  shall  appoint.^  Therefore,  if 
the  henelicial  owner  has  heen  a  long  time  in  possession, 
dealing  with  the  estate  in  every  respect  as  his  own,  it  will  he 
presumed  that  the  trustee  performed  his  duty  and  conveyed 
the  legal  estate  to  the  proper  person.  As  where  a  mortgage 
in  fee  was  made  to  a  trustee  for  the  real  mortgagee,  and  the 
cestui  que  trust  or  real  mortgagee  took  a  conveyance  of  the 
equity  of  redemj)tion,  and  ever  after  dealt  with  the  estate  as 
if  the  legal  fee  was  in  him,  a  conveyance  of  the  mortgage 
was  presumed  to  have  been  made  to  him  by  the  trustee. ^ 
There  was  a  use  of  the  estate  in  this  case  for  one  hundred 
years.  Where  lands  were  conveyed  to  trustees  for  a  reli- 
gious society,  which  was  afterwards  incorporated,  it  was  held, 
after  the  use  of  the  land  for  one  hundred  and  forty  years  by 
the  incorporated  society,  that  a  conveyance  by  the  trustees 
might  be  presumed.^  So  where  several  persons  conveyed  to 
a  trustee  a  tract  of  land  for  the  purposes  of  a  partition  by 
the  trustee  conveying  back  to  each  person  his  share  in  sev- 
eralty, as  set  forth  in  the  deed,  it  was  held,  after  an  occu- 
pation of  many  years  by  each  person  in  severalty  according 
to  the  intended  partition,  that  the  trustee  might  be  presumed 
to  have  conveyed.^  Where  the  trustees  are  to  convey  upon  a 
certain  event,  or  at  a  certain  time,  as  when  a  minor  becomes 
twenty-one,  the  presumption  will  arise  after  a  much  shorter 

1  Langley  v.  Sneyd,  1  S.  &  S.  45  ;  Carteret  v.  Carteret,  2  P.  Wnis. 
134 ;  Angier  r.  Stannard,  3  Myl.  &  K.  571  ;  Euglaud  r.  Slade,  4  T.  11. 
682  ;  Goodson  v.  Ellison,  3  Rnss.  583. 

2  Noel  V.  Bewley,  3  Sim.  103. 

8  Dutch  Church  v.  Mott,  7  Paige,  77. 
*  Jackson  v.  Moore,  13  Johns.  513. 

apply  when  the  trustee  has  himself    114  ]Mo.  292.     Those  'statutes  pro- 
an  intt>rest  in  the  grant,  either  as    hibit  passive  trusts.     Townshend  c. 
an  individual  or  with  others.     King     Gronimer,  125  N.  Y.  446;  Murphey 
V.  Townsend,  141  N.  Y.  358.      See    v.  Cook  (S.  D.),75  N.  W.  387. 
supra,  §  142  ;  Miller  v.  Roseuberger, 

509 


§  353.]  PROPEETIES    OF   THE   TKUST   ESTATE.  [CHAP.    XI. 

lapse  of  time.^  Thus,  where  trustees  were  to  convey  to  the 
testator's  son  immediately  on  his  coming  of  age,  the  son  be- 
came of  age  in  1788,  and  granted  a  long  lease  in  1789,  the 
court  presumed  a  conveyance  in  1792,  or  only  four  years 
after  the  event,  there  being  no  proof  of  an  actual  conveyance. 
Lord  Kenyon  said  *'  there  was  no  reason  why  the  jury  should 
not  presume  a  conveyance  from  the  trustees.  They  were 
bound  to  make  one,  and  a  court  would  have  compelled  them 
to  have  done  it  if  they  had  refused.  It  is  rather  to  be  pre- 
sumed that  they  did  their  duty.  And  as  to  time,  the  jury 
may  be  directed  to  presume  a  conveyance  and  surrender  in 
much  less  time  than  twenty  years. "  ^  So  where  the  direction 
to  the  trustee  to  convey  applies  to  only  a  part  of  the  estate, 
the  court  may  presume  a  conveyance  of  the  whole,  if  the 
circumstances  require  or  warrant  such  presumption.^ 

§  852.  If  the  estate  was  originally  conveyed  to  trustees 
for  some  particular  purpose,  as  by  way  of  security  or  indem- 
nity, or  to  raise  an  annuity  or  portion,  or  for  any  other  pur- 
pose, as  soon  as  the  purpose  is  accomplished,  the  trustees 
become  mere  dry  trustees,  and  it  is  their  duty  to  convey 
the  estate  to  the  beneficial  owner.*  Where,  from  lapse  of 
time  joined  with  other  circumstances,  there  is  a  moral  cer- 
tainty that  the  purposes  of  the  trust  have  all  been  accom- 
plished, the  court  will  act  upon  the  certainty,  and  presume 
a  reconveyance  although  there  is  no  direct  proof  of  the 
fact.  5 

§  353.  Where  an  estate  is  vested  in  trustees  upon  an  ex- 
press trust,  they  must  retain  the  legal  title  until  the  trusts 

1  Wilson  V.  Allen,  1  J.  &  W.  611  ;  Hillary  v.  Waller,  12  Yes.  239 ;  Doe 
V.  Sybourn,  7  T.  R.  2. 

2  England  v.  Slade,  4  T.  R.  682 ;  ISIarr  v.  Oilman,  1  Cold.  488. 
8  Hillary  v.  Waller,  12  Ves.  239. 

4  Hillary  i'.  Waller,  12  Ves.  239  ;  Doe  v.  Sybourn,  7  T.  R.  2  ;  Cooke 
V.  Soltau,  2  S.  &  S.  154;  Ex  parte  Holman,  1  Sugd.  V.  &  P.  509  ;  Emery 
V.  Grocock,  6  Madd.  54  ;  Doe  v.  Wright,  2  B.  &  A.  710  ;  Bartlett  v. 
Dowues,  3  B.  &  Cr.  616. 

6  Emery  i'.  Grocock,  6  Madd.  54  ;  Hillary  v.  Waller,  12  Yes.  252. 

510 


CHAP.    XI.]  SURRENDER.  [§  3o4. 

arc  fully  executed.  Tlierefore,  no  conveyance  will  be  pre- 
sumed, so  loni^^  as  the  trustees  liave  any  duties  to  perfona ; 
for  that  would  be  to  presume  a  breach  of  trust,  whicii  will 
never  be  jjresumcd :  the  fact  must  be  j)roved  by  ccjuipettnt 
evidence.^  In  Aiken  v.  Smith,  the  court  presumed  that  the 
.  conveyance  was  made  at  the  death  of  the  tenant  for  life,  that 
being  the  time  fixed  for  the  conveyance,  and  the  time  when 
the  active  duties  of  the  trustees  ceased.^ 

§  354.  But  there  must  always  be  sufficient  reason  for  pre- 
suming a  reconveyance  or  surrender  by  the  trustee;  that  is, 
there  must  be  some  evidence  of  such  a  conveyance,  or  some 
evidence  upon  which  the  presumption  of  the  conveyance  may 
be  founded.  The  mere  fact  that  the  trustee  was  to  convey 
upon  the  execution  of  the  trust,  or  upon  the  happening  of  a 
certain  event,  is  not  enough.  There  must  be  some  circum- 
stance from  which  it  may  be  reasonably  concluded  that  he 
did  in  fact  convey.  Mere  length  of  time  is  not  enough. 
Courts  have  refused  after  the  lapse  of  one  hundred  and 
twenty  years  to  presume  a  reconveyance,  when  there  were 
no  intermediate  transactions  to  give  force  to  the  length  of 
time;^  for  the  possession  during  all  that  time  may  not 
be  inconsistent  with  the  trustee's  title.*  However,  great 
lapse  of  time  is  an  important  circumstance;  and  the  fact 
that  it  was  the  duty  of  the  trustees  to  convey  is  another 
important  circumstance.  Very  slight  circumstances  added 
to  these  will  be  sufficient  to  justify  a  court  or  jury  in  pre- 
suming a  conveyance;  and  a  conveyance  may  be  presumed 
where  the  estate  has  been  dealt  with  by  the  beneficial 
owner  in  a  manner   in  which  reasonable  men  do  not  deal 

1  Beach  v.  Beach,  14  Vt.  28  ;  Doe  v.  Staple,  2  T.  R.  684 ;  Keene  v. 
Deardon,  8  East,  248;  Flournoy  r.  Johnson,  7  B.  Mon.  694. 

-  Aiken  v.  Smith,  1  Sneed,  304.  This  case  is  opposed  to  Rees  v.  Wil- 
liams, 2  M.  &  W.  749. 

8  (ioodright  i;.  Swymmer,  1  Keiiyon,  385  ;  Goodson  v.  Ellison,  3  Russ. 
583 ;  Langley  v.  Sneyd,  1  S.  &  S.  45 ;  Doe  v.  Lloyd,  Mathews  on  Tre- 
sumptions,  215. 

*  Ibid. ;  Keene  i-.  Deardon,  8  East,  363  ;  Hillary  v.  Waller,  12  Ves. 
250. 

511 


§  356.]  PROPERTIES    OF   THE   TRUST   ESTATE.  [CHAP.    XI. 

with  their  estates,  unless  they  are  the  legal  as  well  as  bene- 
ficial owners.  ^ 

§  355.  It  is  further  said  that  the  purpose  of  the  presump- 
tion must  be  to  prevent  a  just  title  from  being  defeated  by 
mere  matter  of  form.^  The  presumption  is  a  shield  for  de- 
fence and  not  a  sword  for  attack,  as  was  said  of  another 
principle  of  law.  As  the  presumption  was  introduced  for  the 
security  of  estates  and  the  protection  of  innocent  purchasers, 
it  cannot  be  set  up  to  eject  them  from  their  estates;  and 
therefore  the  presumption  will  be  made  only  in  favor  of  the 
person  in  whom  the  beneficial  title  is  clearly  vested  for  the 
time  being,  whatever  may  be  the  extent  of  his  equitable 
interest.^  So  it  was  not  allowed  to  be  set  up  in  favor  of  a 
defendant  who  showed  no  title  but  a  mere  naked  possession, 
which  might  have  been  obtained  by  a  disseizin  of  the  benefi- 
cial owner. ^  And  where  two  litigants  both  claimed  to  be 
the  beneficial  owners,  a  surrender  of  an  outstanding  legal 
estate  or  term  was  not  presumed,  lest  either  obtaining  it 
should  defeat  the  other  without  regard  to  the  merits  of  his 
beneficial  title.^ 

§  356.  In  England,  there  was  a  system  of  conveyancing 
by  which  outstanding  terms  were  made  to  attend  the  legal 
title  and  protect  it.  Much  litigation  and  discussion  has  been 
had  over  these  terms,  their  merging  in  the  legal  title,  and 
their  presumed  surrender;  They  have  very  little  importance 
in  this  country,  and  the  statement  of  the  law  concerning 
them  is  not  deemed  necessary.^ 

1  Garrard  v.  Tuck,  8  C.  B.  248;  Cottrell  v.  Hughes,  15  C.  B.  532;  Hil- 
lary V.  Waller,  12  Ves.  239;  Wilson  v.  Allen,  IJ.  &  W.  611. 

2  Lade  v.  Holford,  Bull.  N.  P.  110  ;  Doe  v.  Sybourn,  7  T.  R.  2  ;  Good- 
title  V.  Jones,  7  T.  R.  47. 

3  Doe  V.  Cook,  6  Bing.  179  ;  Tenny  v.  Jones,  10  Bing.  75 ;  Bartlett  r. 
Downes,  8  B.  &  Cr.  616 ;  Noel  v.  Bewley,  3  Sim.  103  ;  Wilson  v.  Allen,  1 
J.  &W.  611. 

4  Doe  r.  Cook,  6  Bing.  179 ;  England  v.  Slade,  4  T.  R.  682  ;  Doe  v. 
Sybourn,  7  T.  R.  2. 

6  Doe  V.  Wrighte,  2  B.  &  A.  710. 
«  See  Hill  on  Trustees,  pp.  253-263. 
512 


CILVr.   XII.]  LEGAL   AND   ECjUITABLE   ESTATES.  [§  357. 


CHAPTER   XII. 

EXECUTORY     TRUSTS. 

§§  357-359.     Nature  of  an  executory  trust.     The  rule  in  Shellev's  case. 

§  3G0.     Distinction  between  marriage  articles  and  wills. 

§  361.     Construction  of  marriage  articles  and  tlieir  correction. 

§  362.  Wiiere  strict  settlements  will  not  be  ordered. 

§§  303,  364.     Settlement  of  jiersoual  property. 

§  365.  Construction  of  marriage  .settlements. 

§  366.     Executory  trusts  under  wills. 

§  367.  Who  may  enforce  tlie  execution  of  executory  trusts. 

§  368.  Inducements  for  marriage. 

§§  369,  370.     Construction  of  executory  trusts  under  wills. 

§  371.  The  words  "  heirs  of  the  body  "  and  "  issue." 

§  372.     When  courts  will  reform  executory  trusts. 

§  373.     How  courts  will  direct  a  settlement  of  personal  chattels. 

§  374.     Wlictlier  courts  will  order  a  settlement  in  joint-tenancy. 

§  375.     What  powers  tlie  court  will  order  to  be  inserted  in  a  settlement. 

§  376.     Settlement  will  be  ordered  cy  pres  the  intention. 

§  357.  It  is  a  fundamental  proposition  that  equitable 
estates  are  governed  by  the  same  rules  as  legal  estates,  other- 
wise inextricable  confusion  would  ensue. ^  If  there  was  one 
rule  on  the  equity  side,  and  another  on  the  law  side  of  courts, 
there  would  be  no  certainty  or  uniformity  of  interpretation 
or  construction.  Thus  at  common  law  a  grant  to  A.  for  life, 
remainder  to  the  heirs  of  his  body,  vested  an  estate  in  fee-tail 
in  A.,  which  he  could  bar,  and  cut  off  the  remainder.  The 
same  rule  was  apjtlicd  to  executed  trusts.  Tims  if  land  is 
given  to  A.  and  his  heirs  in  trust  for  B.  for  life,  remainder 
to  the  heirs  of  his  body,  B.  takes  an  equitable  fee-tail  ;2  for 

1  Frye  v.  Porter,  1  Mod.  300;  Price  v.  Sisson,  2  Beas.  108;  Cowper  r. 
Covvpcr,  2  P.  Wins.  753;  Burgess  v.  Wheats,  1  Wm.  Black.  123;  Gushing 
V.  Blake,  30  N.  J.  ?:q.  689. 

2  This  illustration  states  tlie  law  only  in  States  where  the  rule  in  Shel- 
ley's case,  as  it  is  called,  is  in  force.  In  States  where  the  rule  is  ahrogated 
by  statute,  those  who  take  in  remainder  under  the  limitation,  take  as  puiv 
chasers;  and  the  same  rule  applies  to  equitable  estates. 

VOL.  I.  —  33  513 


§  357.]  EXECUTORY  TRUSTS.  [CHAP.  XII. 

the  same  rules  apply  to  the  two  species  of  estate.^  Therefore 
where  technical  words  are  used  in  the  creation  of  an  executed 
trust  estate,  they  will  be  taken  in  their  legal  technical  sense,^ 
though  Lord  Hardwicke  once  added  this  qualification,  "unless 
the  intention  of  the  testator  or  author  of  the  trust  plainly 
appeared  to  the  contrary."  ^  But  this  qualification  has  been 
time  and  again  overruled,  and  it  is  now  an  established  canon 
that  a  limitation  in  trust,  perfected  and  declared  by  the  set- 
tlor, shall  have  the  same  construction  as  in  the  case  of  an 
executed  legal  estate.*  But  while  technical  words  receive 
their  technical  meaning  in  equitable  as  well  as  legal  estates, 
technical  words  are  not  always  necessary  to  create  and  limit 
equitable  estates  in  fee.  Thus  an  equitable  fee  may  be 
created  in  a  deed  without  the  word  "heirs,"  and  an  equitable 
entail  without  the  words  "heirs  of  the  body,"  if  the  words 
used  in  their  popular  sense  are  equivalent  to  the  technical 
words,  or  if  the  intention  is  sufficiently  expressed  and  clear.  ^ 
Thus  if  an  estate  is  devised  to  A.  and  his  heirs  in  trust  for 
B.  without  other  limitations,  B.  will  take  an  equitable  fee; 
for  it  is  plain  that  B.  is  to  take  an  equitable  estate  as  large 
as  the  legal  estate  that  passed  to  A.  and  his  heirs,  which  is 
a  legal  fee.^  But  if  an  estate  is  conveyed  by  deed  to  A.  and 
his  heirs  in  trust  for  the  grantor  for  life,  remainder  for  his 
children,  without  the  word  "heirs,"  the  children  take  an 
estate  for  life  only,  in  analogy  to  the  rules  of  law  J 

1  Noble  V.  Andrews,  37  Conn.  346. 

2  Wright  V.  Pearson.  1  Eden,  125;  Bale  v.  Coleman,  8  Vin.  268;  Jer- 
voise  i".  Northumberland,  1  J.  &  W.  571 ;  McPherson  v.  Snowdon,  19  Md. 
197. 

3  Garth  V.  Baldwin,  2  Ves.  655. 

*  Brydges  v.  Brydges,  3  Yes.  Jr.  125;  Austen  v.  Taylor,  1  Eden,  367; 
Glenorchy  v.  Bosville,  Ca.  t.  Talb.  19;  Synge  v.  Hales.  2  B.  &  B.  507; 
Wright  V.  Pearson,  1  Eden,  125.  But  see  Cushing  v.  Blake,  30  N.  J.  Eq. 
389;  Carter  v.  Montgomery,  2  Tenn.  Ch.  216. 

5  Shep.  Touch,  by  Preston,  106. 

«  Moore  v.  Cleghorn,  10  Beav  423;  12  Jur.  591  ;  Knight  ?\  Selby,  3 
Man.  &  Gr.  92;  Doe  v.  Cafe,  7  Exch.  675;  Watkins  r.  Weston,  32  Beav. 
238;  McClintock  v.  Irving,  10  Ir.  Ch.  481;  Brenan  v.  Boyne,  16  Jr.  Ch. 
87;  Betty  v.  Elliott,  id.  110,  n. ;  lie  Bayley,  id.  215. 

'  Overton  v.  Halliday,  14  Beav.  467;  15  id.  480;  16  Jur.  71;  Lucas 
514 


CHAP.    XII.]  LEGAL    AND    EQUITABLE    ESTATES. 


[§  358. 


§  358.  Tlic  rule  in  Shelley's  case  was  never  a  rule  of  iji- 
tention,  or  of  construction  to  reach  and  can-y  out  the  set- 
tlor's intention;  but  it  was  established  as  an  absolute  rule  of 
property  to  olniate  certain  difficulties  that  would  arise  in 
relation  to  tenures,  if  certain  persons  to  whom  property  was 
limited  were  allowed  to  take  as  purchasers,  and  not  hy  de- 
scent' (a)  It  is  notorious  that  the  rule  disappointed  the  in- 
tention of  settlors  in  most  cases,  and  gave  an  absolute 
disposal  of  the  inheritance  to  the  first  taker,  where  the  set- 
tlor intended  that  such  first  taker  should  have  only  an  estate 

V.  Brandreth,  28  Beav.  274 ;   Tatbam  r.  Vernon,  29  id.  604 ;  Nelson  v. 
Davis,  35  Ind.  474. 

1  Doebler's  App.,  G4  Penn.  St.  9. 


(a)  The  rule  in  Shelley's  case 
applies  to  leasehold  as  well  as  free- 
hold estates.  Hughes  f.  Nicklas, 
70  Md.  484.  Under  that  rule,  a 
devise  to  the  testator's  son  for  life 
■with  remainder  to  his  legitimate 
child  or  children,  if  any,  and  if  he 
dies  without  issue,  then  to  another 
son  of  the  testator  for  life  and  after- 
wards to  his  legitimate  child  or 
cliildren,  if  any,  was  held  to  give  to 
the  first  son,  who  died  without 
issue,  an  estate  tail  in  the  testator's 
realty.  Bo  wen  v.  Lewi.s,  9  A.  C. 
890;  see  Morgan  v.  Thomas,  9 
Q.  B.  1).  643;  Evans  v.  Evans, 
[1892]  2  Ch.  173;  Sandes  v.  Cooke, 
21  L.  R.  Tr.  445;  Neville  r.  Thacker, 
23  id.  344;  Clarkson  v.  Clarkson, 
125  Mo.  381 ;  Cowell  v.  Hicks  (N.J. 
Eq.),  30  Atl.  Rep.  1091  ;  Thompson 
V.  Tryon,  66  Vt.  191  ;  Leake  v. 
Watson,  60  Conn.  498;  Taney  v. 
Fahnley,  126  Ind.  88;  Smith  v. 
Collins,  90  Ga.  411;  Seeger  v. 
Leakin,  76  Md.  500 ;  Hurst  v.  Wil- 
son, 89  Tenn.  270;  Earnhart  r. 
Earnhart,  127  Ind.  397;    Gladsden 


V.  Desportes,  39  S.  C.  131 ;  Staraes 
V.  Hill,  112  N.  C.  1;  Hardage  v. 
Stroope,  58  Ark.  303 ;  Moore  r. 
Waco,  85  Texas,  206.  The  rule 
in  Shelley's  case  is  abolished  by 
statute  in  Massachusetts,  ]\Iissis- 
sippi,  &c.,  and  as  to  real  estate  in 
New  Hampshire.  Trumbull  r. 
Trumbull,  149  Mass.  200 ;  Sims  r. 
Pierce,  157  Mass.  52;  Cloutman  r. 
Bailey,  62  N.  II.  44. 

The  rule  in  Shelley's  case  ap- 
pears, in  England,  to  be  a  rule  of 
law,  to  be  applied  even  when  a  tes- 
tator expressly  declares  that  it  shall 
not  apph'  to  any  of  the  limitations 
of  his  will.  A'an  Grutten  c.  Fox- 
well,  [1897]  A.  C.  658;  66  L.  J.  Q.  B. 
745.  And  in  this  country  the  rule 
has  been  held  when  applicable,  in 
the  case  of  devises,  not  to  be  con- 
trolled by  the  testator's  intention. 
Lippincdtt  '".  Davis.  .")9  N.  J.  L. 
241.  But  see  De  Vaughn  r.  Hutcb- 
in.son,  165  U.  S.  566;  Hambel  v. 
Hambel  (Iowa).  75  N.  W.  673; 
Brown  v.  Bryant  (Texas),  44  S.  W. 
399. 

515 


§  358.]  EXECUTORY  TKUSTS.  [CHAP.  XII. 

for  lifc.i  As  trusts  are  wholly  independent  of  tenure,  they 
ought  not  to  be  affected  by  the  rule,  and  a  few  cases  have 
seemed  to  indicate  that  they  were  withdrawn  from  the  opera- 
tion of  it;'^  but  it  is  now  established  that  the  same  rule  shall 
apply  to  the  same  limitation  whether  it  is  of  an  equitable  or 
a  legal  estate.^    Thus  the  rule  in  Shelley's  case  will  be  ap- 

1  For  these  reasons  the  rule  is  now  abolished  in  many  of  the  States  by 
statute.  The  proposition  of  the  text,  however,  should  be  read  in  the  light 
of  the  remarks  of  Agnew,  J.,  in  Yarnall's  App.,  70  Penn.  St.  340 :  "  In  regard 
to  wills  the  cases  show  that  technical  phrases,  as  well  as  forms  of  expres- 
sion decided  in  other  cases,  are  not  permitted  to  overturn  the  intent  of 
the  testator,  when  that  intent  is  clearly  ascertained  to  be  different  in  the 
will  under  examination  by  the  court.  This  broad  principle  needs  no  cita- 
tion to  support  it,  for  it  is  founded  on  the  universal  rule  that  the  intention 
of  the  testator  is  the  guide  for  the  interpretation  of  wills.  The  rule  in 
Shelley's  case  is  only  an  apparent  not  a  real  exception  to  this  statement. 
It  sacrifices  a  particular  intent  only  to  give  effect  to  the  main  intent  of 
the  testator.  All  the  authorities  are  agreed  that  this  rule  has  no  place  in 
the  interpretation  of  wills,  and  takes  effect  only  when  the  interpretation 
has  been  fii-st  ascertained.  Mr.  Fearne,  Contingent  Remainders,  p.  188, 
says,  'Nothing  can  be  better  founded  than  Mr.  Hargi-ave's  doctrine,  that 
the  rule  in  Shelley's  case  is  no  medium  for  finding  out  the  intention  of 
the  testator  ;  that,  on  the  contrary,  the  rule  supposes  the  intention  already 
discovered  and  to  be  a  superadded  succession  to  the  heirs,  general  or 
special,  of  the  donee  for  life,  by  making  such  donee  the  ancestor  terminus 
or  stirps,  from  which  the  generation  of  posterity  or  heirs  is  to  be  accounted ; 
and  that  whether  the  conveyance  has  or  has  not  so  constituted  an  estate 
of  freehold,  with  a  succession  engrafted  on  it,  is  a  previous  question  which 
ought  to  be  adjusted  before  the  rule  is  thought  of;  that,  to  resolve  that 
point,  the  ordinary  rules  for  interpreting  the  language  of  wills  ought  to  be 
resorted  to  ;  that  when  it  is  once  settled  that  the  donor  or  testator  has 
used  words  of  inheritance  according  to  their  legal  import,  has  applied 
them  intentionally  to  comprise  the  whole  line  of  heirs  of  the  tenant  for 
life,  and  has  really  made  him  the  terminus,  or  ancestor  by  reference  to 
whom  the  succession  is  to  be  regulated,  then  comes  the  proper  time  to 
inspect  tlie  rule  in  Shelley's  case.'  In  Ilileman  v.  Bousliugh,  1  Harris, 
351,  Ch.  J.  (libson  expresses  the  same  idea  in  fewer  words,  thus  :  '  This 
operates  only  on  the  intention  of  the  testator  when  it  has  been  ascer- 
tained, not  on  the  meaning  of  the  words  used  to  express  it.  The  ascer- 
tainment is  left  to  the  ordinary  rules  of  construction  peculiar  to  wills;  but 
when  this  is  ascertairied,  is. found  to  be  within  the  rule,  then  there  is  but 
one  way ;  it  admits  of  no  exception.'  " 

2  "Withers  v.  Allgood,  cited,  and  Bagshaw  i^  Spencer,  1  Ves.  150. 

«  Garth  v.  Baldwin,  2  Ves.  646 ;  Wright  v.  Parsons,  1  Ed.  128 ;  Brydges 
516 


CIIAr.    XII.]       MEANING    OF   AN    EXECUTOIiV    TKL'ST.  [§  359. 

plied  to  a  j^ift  to  A.  and  liis  lieirs  in  trust  for  B.  for  life, 
and  I'cuiaindcr  to  his  huirs,  or  liuirs  of  liis  body.  The  reason 
of  the  rule  as  aj)j)lied  to  le^al  estates  was  some  real  or  fan- 
cied dilliculty  concerning  tenures,  or  to  l)ring  estates  one 
generation  sooner  into  commerce,  or  some  other  reason;  for 
neither  judges  nor  text-writers  arc  agreed  u\nm  the  original 
reasons  of  the  rule.  The  reason  of  the  aj)i)lication  of  the 
rule  to  limitations  of  trust  estates  is  to  i)reserve  a  uniformity 
of  the  law  in  relation  to  the  two  kinds  of  estates  in  land. 
This  leads  Mr.  Lewin  to  say,  that  although  the  rule  is  not 
equally  applicable  to  trust  estates,  yet  it  is  equally  applied.^ 
But  the  rule  will  not  be  applied  to  vest  a  fee  or  fee-tail  in 
the  first  taker,  unless  the  word  "heir"  is  used  as  a  term  of 
succession,  and  not  as  a  mere  desiynatio  penoncB.  Thus  if 
an  estate  be  devised  to  A.  and  his  heirs  in  trust  for  B.  for 
life,  and  after  his  decease  in  trust  for  the  j)erson  who  shall 
then  be  his  heir,  B.  takes  an  estate  for  life  only,  and  the 
person  thus  designated  takes  the  estate  by  purchase.^  So  if 
the  legal  estate  is  given  to  A.  in  trust  for  B,  for  life,  and 
the  legal  remainder  to  the  heirs  of  B.,  at  his  decease  the 
rule  cannot  apply ;  for  the  legal  and  ecpiitable  estate  cannot 
so  coalesce  that  B.  can  take  a  fee  either  legal  or  equitable.^ 

§  359.  But  in  order  that  technical  words  may  receive 
their  legal  signification,  and  in  order  that  the  rule  in  Shel- 
ley's case  may  be  applied  to  limitations  of  equitable  estates, 
the  trusts  must  be  executed  and  7wt  executory.^     All  trusts 

V.  Bi7dja;es,  3  Ves.  120;  Jones  v.  Morgan,  1  Rro.  Ch.  206:  Webb  r. 
Shafteshury,  3  Myl.  &  K.  599;  Roberts  v.  Dixwell,  1  Atk.  610;  West, 
536;  Britton  v.  Twining,  3  Mer.  175;  Spence  c.  Spence,  12  C.  B.  (n.  s.) 
199;  Coape  v.  Arnold,  2  Sm.  &  Gif.  311;  Noble  v.  Andrews,  37  Conn. 
316;  Cashing  r.  Blake,  30  N.  J.  Eq.  689;  Sprague  v.  Sprague,  12  R.  L 
703 

*  Lewin  on  Trusts,  SS  (5th  ed.). 

2  CJreaves  r.  Simpson,  10  -fur.  (\.  s.)  609. 

»  Collier  ('.  :McHeaii,  34  Beav.  426  ;  L.  R.  1  Ch.  81. 

*  Eijerton  r.  Brownlow,  4  H.  L.  Gas.  210  ;  Rochford  r.  Fitzniaurice.  '2 
Dr.  &  W.  L'O  ;  4  Ired.  Eq.  384;  Tatham  v.  Vernon,  29  Beav.  604;  Bacon's 
App.,  57  Penn.  St.  504.    This  distinction  was  very  early  established.    15ale 

r,i7 


§  359.]  EXECUTORY    TRUSTS.  [CHAP.    XII. 

are  executory  in  one  sense  of  the  word ;  that  is,  the  trustee 
luust  have  some  duty,  either  active  or  passive,  to  perform,  so 
that  the  statute  of  uses  shall  not  execute  the  estate  in  the 
cestui  que  trust,  and  leave  nothing  in  the  trustee. ^  But  such 
is   not  the  meaning  of   judges  when  they  speak  of  executed 

V.  Coleman,  8  Via.  267;  Stamford  v.  Hobart,  3  Bro.  P.  C.  33;  Papillon 
V.  Voice,  2  P.  Wms.  471 ;  Gleuorchy  v.  Bosville,  t.  Talb.  3 ;  Gower  v. 
Grosvenor,  Barn.  62;  Roberts  v.  Dixwell,  1  Atk.  607;  Baskerville  v.  Bas- 
kerville,  2  Atk.  279;  Woodhouse  v.  Haskius,  3  Atk.  24;  Read  v.  Snell, 
2  Atk.  618;  Marryat  t;.  Townley,  1  Ves.  102.  Sevei'al  of  these  cases  were 
decided  by  Lord  Hardwicke ;  but  in  Bagshaw  v.  Spencer,  1  Ves.  152,  he 
nearly  confounded  and  denied  the  distinction.  In  Exel  v.  Wallace,  2  Ves. 
233,  however,  Lord  Hardwicke  explained  his  meaning,  and  desired  to 
have  it  remembered  that  he  did  not  mean  to  say  that  his  predecessors 
were  wrong.  The  distinction,  as  stated  in  the  text,  is  now  firmly  estab- 
lished both  in  England  and  the  United  States.  Barnard  v.  Broby,  2 
Cox,  8;  Wright  v.  Pearson,  1  Eden,  125;  Austen  v.  Tayloi',  id.  366;  Stan- 
ley V.  Lennard,  id.  95;  Lincoln  v.  ^Newcastle,  12  Ves.  227;  Jervoise  v. 
Northumberland,  IJ.  &  W.  570;  Deerhurst  v.  St.  Albans,  5  Madd.  233; 
2  CI.  &  Fin.  611 ;  Blackburn  v.  Stables,  2  V.  &  B.  369;  Douglass  v.  Con- 
greve,  1  Beav.  59  ;  4  Bing.  N.  C.  1 ;  5  Bing.  N.  C.  318;  Boswell  i;.  Dillon, 
1  Dru.  297  ;  Neves  i;.  Scott,  9  How.  211 ;  13  How.  268  ;  4  Kent,  Cora.  218 
et  seq.  ;  Garner  v.  Garner,  1  Des.  444;  Porter  v.  Doby,  2  Rich.  Eq.  49; 
Dennison  v.  Goehring,  7  Barr,  177 ;  Findlay  v.  Riddle,  3  Biun.  152 ; 
Edmoudson  v.  Dyson,  2  Kelly,  307  ;  Wiley  v.  Smith,  3  Kelly,  559;  Wood 
V.  Burnham,  6  Paige,  518  ;  26  Wend.  19  ;  Imlay  v.  Huntington,  20  Conn. 
162  ;  Berry  v.  Williamson,  11  B.  Men.  251 ;  Home  v.  Lyethe,  4  H.  &  J. 
434  ;  Loring  v.  Hunter,  8  Yerg.  31  ;  Bold  v.  Hutchinson,  5  De  G.,  M.  &  G. 
558.  Lord  Northington  said  that  the  words  "  executory  trusts"  seemed 
to  him  to  have  no  fixed  signification.  Lord  King  said  a  trust  was  execu- 
tory where  the  party  must  come  into  court  to  have  the  benefit  of  the  will. 
Mr.  Lewin  says  the  true  criterion  is,  where  the  assistance  of  the  court  is 
necessary  to  complete  the  limitations,  p.  89.  Lord  Eldon  said  the  trust  was 
executory  where  the  testator  had  not  completed  the  devise,  but  had  left 
something  to  be  done,  so  that  the  court  must  look  to  the  intention.  .Jer- 
voise V.  Northumberland,  IJ.  &  W.  570.  Lord  St.  Leonards  distinguishes 
the  two  as  follows:  "  Has  the  testator  been  what  is  called,  and  very  prop- 
erly called,  his  own  conveyancer  ?  Has  he  left  it  to  the  court  to  make  out, 
from  general  expressions,  what  his  intention  is,  or  has  he  so  defined  that 
intention  that  you  have  nothing  to  do  but  to  take  that  which  is  given  you, 
and  to  convert  them  into  legal  estates  ?  "  Egerton  v.  Brownlow,  4  H.  L. 
Cas.  210. 

1  Bagshaw  v.  Spencer,  1  Ves.  142;  Egerton  v,  Brownlow,  4  H.  L.  Cas. 
210 ;  CoapeV.  Arnold,  4  De  G.,  M.  &  G.  585. 
518 


CHAP.    XII.]       MEANING    OF   AN    EXECUTORY   TiaST.  [§  359. 

trusts,  and  executory  trusts.  These  words  refer  rather  to  the 
manner  and  perfection  of  tlieir  creation  than  to  tlie  action 
of  tlie  trustee  in  administering  the  property.  Thus  a  trust 
created  by  a  deed  or  will,  so  clear  and  certain  in  all  its  terms 
and  limitations  that  a  trustee  has  nothing  to  do  hut  to  carry 
out  all  the  pnjvisions  of  the  instrument  according  to  its  letter, 
is  called  an  executed  trust.  In  these  trusts,  technical  words 
receive  their  legal  meaning,  and  the  rules  ai)jdicablc  to  legal 
estates  govern  the  equitahlc  estates  thus  created.^  On  the 
other  hand,  an  executory  trust  is  where  an  estate  is  conveyed 
to  a  trustee  upon  trust,  to  he  by  him  conveyed  or  settled  upon 
other  trusts  in  certain  contingencies,  or  upon  certain  events, 
and  these  other  trusts  are  imperfectly  stated,  or  mere  outlines 
of  them  are  stated,  to  be  afterwards  drawn  out  in  a  formal 
manner,  and  are  to  be  carried  into  effect  according  to  the 
final  form  which  the  details  and  limitations  shall  take  under 
the  directions  thus  given.^  They  are  called  executory,  not 
because  the  trust  is  to  be  performed  in  the  future,  but  because 
the  trust  instrument  itself  is  to  be  moulded  into  form  and 
perfected  according  to  the  outlines  or  instructions  made  or 
left  by  the  settlor  or  testator.^  (a)     Thus  land  conveyed  to  A. 

^  Wright  r.  Pearson,  I  Eden,  12");  Austen  v.  Taylor,  id.  •'367  ;  4  Kent, 
Com.  22U;  Jones  v.  Morgan,  1  Bro.  Ch.  -!0(J ;  Jervoise  o.  Northuniberlaud, 
IJ.  &  W.  559  ;  Boswell  c.  Dillon,  1  Dru.  291. 

2  Austen  v.  Taylor,  1  Eden,  306  ;  Wright  v.  Pearson,  id.  125  ;  Jervoise 
V.  Northumberland,  1  J.  &  W.  570;  Coape  v.  Arnold,  4  De  G.  M.  &  G. 
585;  Neves  v.  Scott,  9  How.  211 ;  Wiley  v.  Smith,  3  Kelly,  5."i9  ;  Edmond- 
son  V.  Dyson,  2  Kelly.  307;  Wood  v.  Burnham,  6  Pai;.;e,  518;  26  Wend. 
19;  Thompson  v.  Fisher,  L.  R.  10  Eq.  207;  Cushiug  v.  Blake,  30  N.  J. 
Eq.  689. 

3  Ibid. 

(«)  When   it   is  uncertain   who  former  executes  itself  by  converting 

the  remaindermen  will  be,  the  tru.st  its  limitations  into  the  correspoud- 

is  executory,  and  the  remainder  is  ing    legal  estates,    whereas   in    the 

an  equitable,  and  not  a  legal  estate,  latter,   the   court   m.iy    direct   that 

Cushman  v.  Ooleman,  92  Ga.  772;  form   of  settlement  or   conveyance 

Carney   v.   Kain,   40  W.    Va.    758.  which  will   best  give  effect  to    the 

"  In  practice  the  chief  distinction  settlor's  intention,  and  for  this  pur- 

between  an  executed  and  an  execu-  pose  may  even  disregard  the   cou- 

tory  trust  lies  in  the  fact  that  the  struction  the  instrument  would  re- 

519 


§  359.]  EXECUTORY   TRUSTS.  [CHAP.    XIL 

upon  trust,  to  settle  the  same  upon  B.  and  C.  and  their  issue, 
in  the  event  of  their  marriage,  is  an  executory  trusts  There 
is  a  conveyance  or  settlement  to  be  executed  by  A.,  and  the 
form  or  terms  of  this  conveyance  or  settlement  is  to  be  de- 
termined by  the  intention  of  the  original  grantor.^  When 
this  conveyance  or  settlement  is  finally  determined  and  made, 
the  trust  becomes  executed  in  the  sense  of  the  word  as  appli- 
cable to  this  distinction,  and  it  is  afterwards  governed  by  all 
the  rules  of  an  executed  trust.  The  difference  between  the 
two  kinds  of  trusts  is  this.  In  executed  trusts  the  rules  of 
property  govern,  and  not  the  intention  of  the  settlor,  if  it  is 
contrary  to  the  law  or  rule  of  property.^  Thus  if,  in  an  exe- 
cuted trust,  an  estate  is  given  to  A.  in  trust  for  B.  for  life, 
with  remainder  to  his  heirs,  B.  takes  an  equitable  fee,  and 
may  convey  the  equitable  inheritance  and  exclude  his  heirs, 
although  it  is  perfectly  certain  that  the  settlor  intended  that 
B.  should  take  an  estate  for  his  life  only.*  But  an  executory 
trust  is  settled  and  carried  into  effect  according  to  the  inten- 
tion of  the  settlor.^     Thus  if  an  estate  is  conveyed  to  A.  in 

1  Ibid.  2  Ibid. 

3  Choice  V.  Marshall,  1  Kelly,  97  ;  Schoonmaker  v.  Sheely,  3  Hill,  165; 
Kingsland  i'.  Rapelye,  3  Edw.  2  ;  Brant  v.  Gelston,  2  John.  Ca.  3S4. 

«°Ibid. 

6  Wood  V.  Burnhara,  6  Paige,  513;  26  Wend.  9  ;  4  Kent,  Com.  219;  1 
West,  Ch.  t.  Hardwicke,  542.  A  mere  direction  to  convey  will  not  render 
the  trust  executory,  if  the  directions  are  so  clear,  and  the  limitations  are 
so  certainly  defined,  that  there  is  nothing  to  do  but  to  convey  in  accord- 
ance with  them.  In  order  that  the  trust  may  be  executory,  there  must  be 
some  room  for  construction,  in  order  to  determine  the  intention  of  the 
settlor;  that  is,  to  determine  what  limitation  shall  be,  and  what  shall  not 
be,  introduced  into  the  conveyance  to  be  made.  Egerton  v.  Brownlow,  4 
H.  L.  Cas.  210;  Austen  v.  Taylor,  1  Ed.  361 ;  Weight  i'.  Leigh,  15  Yes.  564; 
Graham  v.  Stewart,  2  Macq.  H.  L.  Ca.  205 ;  Herbert  v.  Blunden,  1  Dr.  & 
Walsh,  78 ;  Elast  v.  Twyford,  9  Hare,  713 ;  Doncaster  v.  Doncaster,  3  K. 
&  J.  26;  Stanley  v.  Stanley,  16  Ves.  491;  Glenorchy  v.  Bosville,  1  Lead. 
Ca.  Eq.  20,  and  notes;  McElroy  v.  McElroy,  113  Mass.  509  ;  Gushing  v. 
Blake,  30  N.  J.  Eq.  689. 

ceive  at  law."     Per  Garrison,  J.,  in    ton,  59  N.  H.  364  ;  Rupra,  §  82,  note; 
Pillot  V.  Landon,  46  N.  J.  Eq.  310,     Pittman  v.  Pittman  (N.  C.),  11  L. 
313.     See  also  Smith's  Estate,  144    R.  An.  456,  and  note. 
Penn.  St.  428 ;  Bartlett  v.  Reming- 

520 


CHAP.    XII.]  MARRIAGE   ARTICLES.  [§  360. 

trust,  Avith  instructions  to  convey  it  to  B.  for  life,  with  rc- 
muiuder  to  his  heirs,  or  to  convey  it  in  trust  for  Ji.  fur  life, 
with  remainder  to  his  heirs,  li.  takes  an  estate  for  life  only, 
and  his  heirs  take  by  purchase  at  his  decease,  if  such  appeared 
to  be  the  intention  of  the  original  gift  or  grant.  ^ 

§  3G0.  In  the  history  of  executory  trusts,  still  another  dis- 
tinction has  been  drawn,  or  a  distinction  between  executory 
trusts  created  by  marriage  articles,  and  executory  trusts 
created  by  wills.  This  is  not  so  much  a  difference  between 
two  classes  of  executory  trusts,  as  it  is  a  difference  between 
the  rules  that  will  be  applied  to  the  interifrctation  of  mar- 
riaje  articles  and  of  to  ills,  in  order  to  determine  the  intention 
of  the  settlor  or  the  testator.  Lord  Eldon  once  said,  that 
"there  was  no  difference  in  the  execution  of  an  executory 
trust  created  by  will,  and  a  covenant  in  marriage  articles; 
such  a  distinction  would  shake  to  their  foundation  the  rules 
of  equity.  "2  But  the  great  chancellor  afterwards  modified 
his  expression.^  And  certainly  there  is  no  diiference  in  the 
execution  of  the  two  trusts  when  it  is  settled  what  they  are; 
but  there  is  a  difference  in  the  construction  of  marriage 
articles  and  of  wills  in  order  to  reach  the  intention  of  the 
creator  of  the  trusts.  Thus,  in  marriage  articles,  the  inten- 
tion of  the  parties  to  the  articles  is  presumed  to  be  a  provi- 
sion for  the  issue  of  the  marriage,  and  such  construction  is 
given  to  the  articles  as  to  carry  into  effect  this  presumed 
intention  if  possible;  while  in  construing  wills,  in  order  to 
settle  the  limitations  of  a  trust,  there  is  no  such  presumed 
leading  intention ;  or,  as  Sir  W.  Grant  put  it,  "  I  know  of  no 
difference  between  an  executory  trust  in  marriage  articles 
and  in  a  will,  except  that  the  object  and  purpose  of  tlie 
former  furnish  an  indication  of  intention,  which  must  be 
wanting  in  the  latter.     Where  the  object  is  to  make  a  provi- 

1  Ibid.;  Savage  w.  Tyers,  L.  R.  S  Ch.  ;?50. 

2  Lincoln  v.  Newcastle,  12  Ves.  230 ;  and  see  Tinner  v.  Sargent,  17 
Beav.  5in  ;  Reed  v.  Palmer,  5:5  Penn.  St.  ;579. 

*  Jervoise  r.  Northumberland,  1  J.  &  W.  574;  Townsend  r.  Mayer.  3 
Beav.  443;  Lassence  r.  Tierney,  1  Mac.  &  G.  551  ;  (Gardner  c.  Stevens,  30 
JL.  J.  Ch.  199 ;  Crofton  i-.  Davies,  L.  R.  4  C.  B.  159. 

521 


§  361.]  EXECUTOKY    TllUSTS.  [CHAP.    XII. 

sion  by  the  settlement  for  the  issue  of  a  marriage,  it  is  not 
to  be  presumed  that  the  parties  meant  to  put  it  in  the  power 
of  the  father  to  defeat  that  purpose,  and  appropriate  the 
estate  to  himself.  If,  therefore,  the  agreement  be  to  limit 
an  estate  for  life  with  remainder  to  the  heirs  of  the  body,  the 
court  decrees  a  strict  settlement  in  conformity  to  the  presum- 
able intention.  But  if  a  will  directs  a  limitation  lor  life 
with  remainder  to  the  heirs  of  the  body,  the  court  has  no  such 
ground  for  decreeing  a  strict  settlement. "  ^ 

§  361.  Thus  if,  in  marriage  articles,  the  real  estate  of  the 
husband  or  of  the  wife  is  limited  to  the  Jieirs  of  the  body  or  to 
the  issue  '^  of  the  contracting  parties,  or  either  of  them,  or  to 
the  issue  of  the  body,  or  to  the  issue  and  their  heirs, ^  so 
that  the  words  and  limitations,  taken  in  their  legal  sense, 
would  enable  the  parents,  or  one  of  them,  to  defeat  this  pro- 
vision for  the  children,  equity  will  construe  the  articles  to 
mean  that  the  estate  is  limited  to  the  parents  for  life,  and 
the  children  will  take  at  the  decease  of  their  parent  or  par- 
ents as  purchasers ;  and  equity  will  decree  a  formal  settle- 
ment to  be  drawn  in  such  way  as  to  carry  out  this  purpose.^  (a) 
If  a  settlement  is  already  drawn  after  the  marriage,  but  not 
in  accordance  with  this  rule,  equity  will  correct  and  reform 
it  so  as  to  carry  out  this  intention.  °     But  if  the  settlement 

1  Blackburn  v.  Stables,  2  Ves.  &  B.  369  ;  Bale  v.  Coleman,  8  Vin.  267; 
Strafford  v.  Powell,  1  B.  &  B.  25  ;  Synge  v.  Hales,  2  B.  &  B.  508;  Maguire 
V.  Scully,  2  Hog.  113;  Rochford  v.  Fitzmaurice,  1  Conn.  &  Laws,  173:  2 
Dr.  &  War.  18 ;  4  Ir.  Eq.  375  ;  Jervoise  v.  Northumberland,  1  J.  &  W. 
574;  Deerhurst  v.  St.  Albans,  5  Madd.  260. 

2  Dod  V.  Dod,  Amb.  274. 

3  Phillips  V.  James,  2  Dr.  &  Sm.  404. 

4  Handick  v.  Wilkes,  1  Eq.  Cas.  Ab.  393;  Gilb.  Eq.  114;  Trevor  w. 
Trevor,  1  P.  Wms.  622  ;  Rochford  v.  Fitzmaurice,  1  Conn.  &  Laws.  173 ; 
2  Dr.  &  War.  18;  4  L-.  p:q.  375;  Cu.sack  v.  Cusack,  5  Bro.  P.  C.  116; 
Davies  v.  Davies,  4  Beav.  54  ;  Griffith  v.  Buckle,  2  Vern.  13  ;  Jones  v. 
Langton,  1  Eq.  Cas.  Ab.  392 ;  Stonor  v.  Curwen,  5  Sim.  289 ;  Barnaby  v. 
Griffin,  3  Ves.  206;  Home  i-.  Barton,  19  Ves.  398;  Coop.  257;  22  L.  J. 
(x.  s.)  Ch.  225. 

5  Warrick  ;'.  Warrick,  3  Atk.  293  ;  Sheatfield  v.  Sheatfield,  Ca.  t.  Talb. 

(a)  See  Grier  v.  Grier,  L.  R.  5  H.  L.  688,  699. 
522 


CHAP.    XII.]  MARRIAGE    ARTK'LES.  [§  3G1. 

was  formally  drawn  out  before  marriage  contrary  to  this  rule, 
the  court  will  jjrcsume  that  the  ])artie8  abandoned  tlie  arti- 
cles, and  entered  into  a  new  agreement,  as  expressed  in  the 
settlement.^  If,  however,  a  settlement  before  marriage  is 
expressed  on  its  face  to  be  made  to  carry  out  the  articles,  and 
it  docs  not  carry  them  out  in  this  respect,  erpiity  will  reform 
it. 2  So  if  it  can  be  shown  in  any  other  way  that  the  formal 
settlement  was  intended  to  cari-y  out  the  articles,  and  it  does 
not  do  so,  equity  will  reform  it  on  the  ground  of  mistake,^  or 
if  the  settlement  is  made  in  the  very  words  of  the  articles, 
and  the  legal  effect  of  the  words  of  the  articles  and  settle- 
ment is  different  from  the  intention  of  the  parties,  the  settle- 
ment will  be  corrected  and  reformed  in  order  to  carry  out 
the  exact  intention  of  the  parties.*  If,  however,  there  arc 
any  intervening  rights,  as  those  of  an  innocent  purchaser 
without  notice,  his  rights  of  course  will  be  protected.^  So  it 
is  established  that  daughters  are  included  under  the  general 
term  of  heirs  or  issue,  and  that  they  take  as  purchasers.^ 
And  children  includes  grandchildren."  This  has  been  held  in 
England.^     Of  course  in  the  United  States,  where  primogen- 

176;  Legg  r.  Goldwire,  id.  20;  Burton  v.  Hastings,  Gilb.  Eq.  113;  over- 
ruling same  case  1  Eq.  Cas.  Ab.  393 ;  Briscoe  v.  Briscoe,  7  Ir.  Eq.  129. 

^  Legg  V.  Goldwire,  Ca.  t.  Talbot,  20;  Warrick  v.  Warrick,  3  Atk. 
291. 

2  Honor  v.  Honor,  1  P.  Wins.  123;  West  v.  Erris.sey,  2  P.  Wms.  349; 
Roberts  v.  Kingsley,  1  Ves.  238. 

8  Bold  V.  Hutchin.son,  5  De  G.,  M.  &  G.  568;  Rogers  v.  Earl,  1  Dick. 
294;  1  Sugd.  V.  &  P.  143. 

*  West  V.  Errissey,  2  P.  Wms.  349  ;  Roberts  v.  King.sley,  1  Vos.  238; 
Honor  v.  Honor,  1  P.  Wms.  128;  2  Vern.  6."i8;  Powell  v.  Price,  2  P.  Wras. 
535;  Gaillard  v.  Pardon,  1  .Mc^Mul.  Eq.  358;  Neves  v.  Scott,  9  How.  197; 
Gause  v.  Hale,  2  Ired.  Eq.  241;  Smith  i:  Maxwell,  1  Hill.  Eq.  101;  Allen 
V.  Rumph,  2  Hill,  Eq.  1  ;  Briscoe  v.  Briscoe.  7  Ir.  Eq.  129. 

6  Warrick  (;.  Warrick,  3  Atk.  291;  Trevor  v.  Trevor,  1  P.  Wms.  622; 
West  V.  Errissey,  2  P.  Wms.  349.  But  if  the  purchaser  have  notice  of 
the  articles,  they  may  be  enforced  against  him.  Davies  /•.  Davies.  4 
Beav.  54  ;  Thompson  v.  Simpson,  1  Dr.  &  War.  491 ;  Abbott  v.  Geraghty, 
4  Ir.  Eq.  15. 

«  West  r.  Errissey,  2  P.  Wms.  349  ;  Comyn,  R.  412;  1  Bro.  P.  C.  225. 

'  Scott  V.  Moore,  1  Wins.  (N.  C.)  Eq.  98. 

8  Bmtou  V.  Hastings,  2  P.  Wms    535;  Gilb.  Eq.  113;  1  Y.i\.  Cas.  Ab. 

523 


§  362.]  EXECUTORY   TRUSTS.  [CHAP.    XIL 

iture  is  abolished,  estates  will  be  settled  upon  sons  and 
daughters  equally,  or  upon  daughters  alone  in  default  of  sons. 
But  if  the  children  or  issue  of  the  marriage  arc  provided  for 
in  some  other  way,  as  by  portions  to  be  raised  for  them  in 
such  manner  that  it  appears  that  they  are  not  intended  to 
take  as  purchasers  of  the  particular  estate  under  the  settle- 
ment, then  the  rule  in  Shelley's  case  will  prevail,  and  the 
parents  or  parent  may  sell  the  whole  estate.  ^  And  so  where 
there  is  an  actual  present  conveyance  of  personal  property  by 
a  marriage  contract  executed  before  marriage  in  trust  for  the 
wife,  and  at  her  death  to  the  heirs  of  her  body,  it  was  held  to 
be  an  executed  trust,  there  being  no  further  conveyances  to 
be  executed,  and  that  the  rule  in  Shelley's  case  applied. ^ 

§  362.  In  England,  when  a  married  woman  could  not 
convey  her  interest  in  real  estate,  a  strict  settlement  was  not 
ordered  under  marriage  articles  that  limited  the  husband^s 
estate  to  the  heirs  of  the  body  of  the  wife,  for  the  reason  that 
this  created  an  entail  that  could  not  be  barred  without  con- 
siderable difficulty;  but  since  the  Fines  and  Recoveries  Act, 
the  difficulty  is  removed.^  Nor  will  the  court  order  a  strict 
settlement,  if  there  is  anything  in  the  nature  of  the  limita- 
tions, or  otherwise  on  the  face  of  the  articles,  which  indicates 
that  such  was  not  the  intention  of  the  parties,  for  the  reason 
that  the  rule  now  under  discussion  was  established  in  order 
to  carry  out  the  intention  of  the  parties.  If,  therefore,  the 
intention  of  the  parties  appears  to  be  in  accordance  with,  or 
not  contrary  to,  the  ordinary  rule,  the  ordinary  rule  will  be 
allowed  to  prevail.* 

393;  Hart  v.  Middlehurst,  3  Atk.  371  ;  IMaguire  v.  Scully,  2  Hog.  113; 
1  Beat.  370;  Marryat  v.  Townley,  1  Ves.  105;  Phillips  v.  Jones,  4  Dr.  & 
Sm.  406 ;  3  De  G.,  J.  &  S.  72. 

1  Powell  V.  Price,  2  P.  Wms.  535;  Fearne's  Con.  Rem.  103. 

2  Carroll  v.  Renick,  7  Sm.  &  M.  799  ;  Tillinghast  v.  Coggeshall,  7  R.  I. 
383. 

3  Rochford  v.  Fitzmaurice,  2  Dru.  &  W.  19  ;  Highway  v.  Banner,  1  Bro. 
Ch.  587;  Howel  v.  Howel,2  Ves.  S.^S;  Green  v.  Ekins,  2  Atk.  477;  Honor 
V.  Honor,  1  P.  Wms.  123. 

*  Rochford  v.  Fitzmaurice,  2  Dru.  &  W.  19  ;  Highway  v.  Banner,  1  Bro. 
524 


CHAP.    XII]  MARRIAGE   ARTICLES.  [§  364 

§  3G3.  If  personal  property  is  agreed  to  be  settled  on  the 
parents  for  life,  and  then  to  their  heirs,  or  the  heirs  of  their 
bodies,  the  chattels  will  not  vest  in  the  parents  absolulcls-, 
but  in  the  heirs  when  they  are  born;^  and  it  is  not  necfssary 
that  they  should  survive  their  ]»arents,  or  b(.'Conic  actual 
heirs,2  unless  the  gift  is  to  the  }»an'nts  and  tlicir  heirs  living 
at  the  death  of  the  surviving  parent,  or  there  are  other  equiv- 
alent words.  ^ 

§  304.  If  there  is  a  covenant  in  marriage  articles  to  settle 
personal  property  upon  the  same  trusts,  and  for  the  same 
purposes,  as  the  real  estate  is  settled,  the  court  will  not  apply 
the  same  limitations  to  the  personal  as  to  the  real  estate,  for 
that  would  be  to  vest  an  absolute  interest  in  the  heirs  at  their 
birth;  but  the  court  will  insert  a  provision  making  the  per- 
sonal property  follow  the  course  of  the  real  estate.^  Courts 
will  also  insert  a  provision  that  the  children  or  issue  shall 
take,  as  tenants  in  common,  and  not  as  joint-tenants,  on 
account  of  the  inconveniences  of  joint-tenancies,  and  from  the 
presumed  intention  of  the  parties;^   and  so  the  court  will 

Ch.  587;  Ilowel  v.  Ilowel,  2  Ves.  358;  Green  v.  Ekins,  2  Atk.  477  ;  Honor 
V.  Honor,  1  P.  Wms.  123;  Power  v.  Price,  2  P.  Wras.  535;  Chambers  v. 
Chambers,  2  Eq,  Cas.  Ab.  35;  Fitzg.  127. 

1  Ilodgeson  v.  Bussey,  2  Atk.  89;  Barn.  195;  Bartlett  r.  Green,  13 
Sim.  218.  ■•^  Theebridge  r.  Kilburne,  2  Ves.  233. 

8  Read  v.  Snell,  2  Atk.  642. 

*  Stanley  v.  Leigh,  2  P.  Wms.  690;  Gower  v.  Grosvenor,  Barn.  63; 
5  Madd.  348;  Newcastle  v.  Lincoln,  3  Ves.  387,  394,  ;;97  ;  Si-arsdale  v. 
Curzon,  1  John.  &  U.  51.  The  matter  referred  to  in  the  text  scMom  or  never 
arises  in  the  marriage  settlements  made  in  the  United  States,  as  primo- 
geniture is  abolished,  and  entails  ou  the  eldest  son  are  seldom  resorted  to. 
But  where  personal  chattels  are  made  to  vest  under  a  marriage  settlement 
in  the  eldest  son  as  heir,  and  such  son  dies  under  age,  very  awkward 
effects  follow;  and,  under  covenants  to  settle  personal  property  upon  the 
same  limitations  as  are  applied  to  a  settlement  of  real  estate  wherein  the 
eldest  son  takes  as  heir,  it  was  a  matter  of  great  discussion  in  the  Court 
of  Chancery  and  in  the  House  of  Lords,  what  kind  of  provisions  ought  to 
be  inserted  to  protect  the  parents  and  other  children  in  case  the  eldest  son 
died  under  age  and  without  issue.  Newcastle  r.  Lincoln,  3  Ves.  387;  12 
Ves.  21 S. 

6  Taggart  c.  Taggart,  1  Sch.  &  Lef.  88 ;  lligden  t;.  Vallier,  3  Atk.  734; 

525 


§  365.]  EXECUTORY  TRUSTS.  [CHAP.  XII. 

insert  other  words  and  conditions,  and  vary  the  literal  in- 
struction of  the  articles  in  order  to  carry  out  the  presumed 
intention,  and  promote  a  convenient  settlement  for  the  pro- 
tection and  security  of  all  the  parties,^  as  if  the  settlement  is 
to  be  of  all  the  property  which  the  settlor  might  thereafter  be- 
come entitled  to,  it  will  be  construed  to  embrace  only  the  prop- 
erty acquired  duringthe  marriage.^  The  court  will  not  always 
order  a  formal  settlement  to  be  drawn  out,  but  will  declare  the 
meaning  and  intention  of  the  articles,  and  leave  the  parties 
to  act  upon  the  declaration,  as  if  it  was  a  formal  settlement 
drawn  out  and  executed  by  them.^  So  the  court  will  some- 
times rectify  the  settlement  drawn  under  articles  by  a  decree, 
without  ordering  a  new  deed  to  be  drawn  out  and  executed.* 

§  365.  Marriage  settlements,  whether  made  in  pursuance 
of  articles,  or  under  directions  contained  in  wills,  or  under 
decrees  of  the  court,  are  matters  in  which  courts  exercise 
the  most  liberal  principles  of  equity.  If  a  settlement  is  drawn 
up  under  a  decree,  and  it  is  not  in  all  respects  in  accordance 
with  the  decree,  the  court  will  set  it  aside,  and  order  a  new 
settlement.^  In  Grout  v.  Van  Schoonhoven,  the  court  ordered 
a  new  settlement,  in  substance  that  the  trust  should  be  for 
the  wife  during  her  life  without  power  of  anticipating  the 
income;  and  upon  her  death  for  the  use  of  her  husband  for 
life,  in  case  he  survived  her ;  and,  after  the  death  of  both,  to 
be  divided  equally  among  all  their  children  then  living,  and 
the  descendants  of  such  as  had  died  leaving  issue,  per  stirpes  ; 
with  a  power  to  make  advances  with  the  approbation  of  the 
trustees  to  the  children,  on  their  attaining  full  age  or  being 
married,  out  of  the  capital  fund,  in  anticipation  of  the  ulti- 

Marryat  v.  Townley,  1  Yes.  103.  Joint-tenancy  is  abolished  by  statute  in 
most  of  the  United  States,  with  the  exception,  in  some  States,  of  gifts  and 
grants  to  husband  and  wife. 

1  Kentish  r.  Newman,  1  P.  Wms.  23i ;  Martin  v.  Martin,  2  R.  &  M. 
507:  Master  v.  De  Croismar,  11  Beav.  184;  Targus  v.  Puget,  2  Ves.  194. 

2  Steinberger  v.  Potter,  3  Green,  Ch.  452. 
8  Byam  v.  Byam,  19  Beav.  58. 

4  Tebbitt  v.  Tebbitt,  1  De  G.  &  Sm.  506. 

5  Temple  v.  Hawley,  1  Sandf.  Ch.  154. 

526 


CHAI.    XII.]  MARRIAGE   SETTLEMENTS.  [§  365. 

mate  distribution,  in  order  to  set  them  up  in  the  world. ^  An 
advance  cannot  be  made  in  order  that  a  child  may  ])ut  the 
money  in  his  pocket,  but  an  advance  may  be  made  to  trustees 
under  a  marria<^o  settlement  for  a  child. '-^  Where  thei'e  was 
power  of  advancement  to  a  married  woman,  it  was  lield  that 
an  advance  to  her  husband  to  set  him  uj)  in  l)usines8  might 
be  allowed  ;  ^  and  so  where  there  was  power  in  a  settlement  to 
withdraw  funds,  and  lay  them  out  in  the  purchase  of  a  trade 
for  the  benefit  of  husband  and  wife,  the  power  may  be  exer- 
cised for  the  benefit  of  one  after  the  death  of  the  other.* 
In  Imlay  v.  Huntington,  a  husband  covenanted  that  he  would 
pay  over  to  certain  trustees  $10,000,  and  one-half  of  certain 
other  expected  moneys  of  his  intended  wife,  to  be  held  by 
said  trustees  in  trust  for  the  wife  for  the  term  of  twenty  years, 
after  which  time  they  were  to  convey  to  such  persons  as  the 
wife  should  ap])oint.  The  marriage  was  consummated,  and 
the  husband  received  $(30,000,  which  he  continued  to  hold 
and  manage  as  his  own  during  the  lifetime  of  his  wife,  mak- 
ing no  payment  to  the  trustees,  and  neither  the  trustees  nor 
the  wife  requesting  him  to  pay  the  sum  over,  or  to  make  any 
settlement  in  pursuance  of  the  articles.  On  the  death  of  the 
wife,  at  the  end  of  twenty  years,  her  brothers  and  sisters, 
there  being  no  issue  of  the  marriage,  applied  to  the  court  by 
bill  in  equity  for  the  execution  of  the  marriage  settlement,  in 
accordance  with  the  articles  and  covenants  entered  into  by 
the  husband  before  marriage:  but  it  was  held  that  it  was 
com])ctent  for  the  wife  to  discharge  the  husband  from  the 
fuliUment  of  the  covenants,  and  to  abandon  the  trust ;  that, 
under  the  circumstances  of  the  case,  the  articles  were  aban- 
doned by  the  wife  and  nil  the  parties  ;  that  the  wife's  personal 
property  vested  absolutely  in  the  husband;  and  that  the 
wife's  heirs  had  no  right  to  maintain  the  bill  for  any  part  of 
her  personal  estate.^ 

1  Grout  t'.  Van  Schoonhoven,  1  Sandf.  Ch.  342. 

2  Roper  V.  Curzon,  I..  II.  11  Eq.  452. 

8  In  re  Kershaw's  Trust,  L.  R.  6  Eq.  322. 
<  Doorly  r.  Arnold,  18  W.  R.  .540. 

^  Inday  v.  Huntington,  20  Conn.  146 ;  Jones  v.  Iliggins,  L.  R.  2  Eq. 
538. 

527 


§  366.]  EXECUTORY  TRUSTS.  [CHAP.  XII. 

§  366.  In  executory  trusts  created  by  wills,  no  presumption 
arises  a  priori  that  a  provision  was  intended  for  the  children 
of  the  first  taker,  as  in  marriage  settlements,  and  that  such 
chihiren  were  intended  to  take  as  purchasers.  If  the  trust 
be  "for  A.  and  the  heirs  of  his  body, "^  or  "for  A.  and  the 
heirs  of  his  body  and  their  heirs," '^  or  "for  A.  for  life  and 
after  his  decease  to  the  heirs  of  his  body,"  ^  A.  will  be  tenant 
in  tail;  and  he  may  disappoint  his  heirs  by  barring  the 
entail.  So,  where  a  testator  directed  an  estate  to  be  settled 
on  his  "daughter  and  her  children,  and,  if  she  died  without 
issue,"  remainder  over,  the  court  held  that  the  daughter  was 
tenant  in  tail ;  and  that  in  a  voluntary  devise  the  court  must 
take  it  as  they  find  it,  though  upon  like  words  in  a  marriage 
settlement  it  might  be  different.^  So  where  a  testator 
directed  lands  to  be  settled  on  his  "nephew  for  life,  remain- 
der to  the  heirs  male  of  his  body,  and  the  heirs  male  of  every 
such  heir  male  severally  and  successively,  one  after  another, 
as  they  should  be  in  seniority  and  priority  of  birth,  every 
elder  and  the  heirs  male  of  his  body  to  be  preferred  before 
the  younger,"  it  was  held  that,  although  the  nephew  took  by 
a  voluntary  executory  devise,  the  court  must  execute  it  in 
the  words  of  the  will  and  according  to  the  rules  of  law,  and 
that  equity  could  not  carry  the  words  further  than  the  same 
words  would  operate  at  law,  and  that  the  nephew  took  an 
estate  tail.  The  words  in  this  case  all  went  upon  the  idea  of 
an  entail.^  So  if  there  is  a  direction  that  the  trustees  shall 
not  give  up  their  trust  until  "a  proper  entail  was  made  to 
the  heir  male  by  them. "  ^  But  in  another  similar  executory 
trust.  Lord  Eldon  declined  to  compel  a  purchaser  to  accept 
the  title,  on  the  ground  that  the  entail  was  too  doubtful  to 

1  Harrison  v.  Naylor,  2  Cox,  217;    Bagshaw  v.   Spencer,  1  Ves.  151; 
Marshall  v.  Bousley,  2  Madd.  166  ;  Robertson  v.  Johnston,  36  Ala.  197. 

2  Marryat  v.  Townley,  1  Ves.  104. 

8  Blackburn  v.  Stables,  2  V.  &  B.  270;  Seale  v.  Seale,  1  P.  Wms.  290; 
Meure  v.  Meure,  2  Atk.  266 ;  Robertson  v.  Johnston,  36  Ala.  197. 

*  Sweetapple  r.  Bindon,  2  Vern.  536. 

6  Legatt  V.  Sewell,  2  Yern.  551 ;  McPherson  v.  Snowden,  19  IMd.  197. 

8  Blackbnrn  v.  Stables,  2  V.  &  B.  307 ;  Marshall  v.  Bousley,  2  Madd. 
166  ;  Dodson  v.  Dodson,  3  Bro.  Ch.  405. 
528 


CHAP.    XII.]      WHO   MAY   ENTORCE   THE   SETTLEMENT.  [§  3G7. 

be  acted  upon  in  so  grave  a  matter.^  Where  a  testator  de- 
vised real  estate  to  his  daughter,  then  unmarried,  in  trust  for 
her  heirs,  she  to  receive  the  income  for  her  and  their  support 
and  education,  and,  if  she  should  die  leaving  no  heirs,  then 
over  to  her  brothers  and  sisters,  it  was  held  that  the  word 
"  income  "  passed  the  estate  to  the  daughter,  that  the  word 
"heirs  "  was  a  word  of  limitation,  and  that  the  daughter  took 
an  estate  tail.^  In  the  gift  of  a  fund  the  term  "heirs  at 
law  "  means  next  of  kin  or  persons  entitled  under  the  statute 
of  distributions  relating  to  personal  property. ^ 

§  3G7.  In  executory  trusts  under  marriage  articles,  many 
distinctions  arise  upon  the  question.  Who  may  enforce  their 
specific  performance,  and  compel  the  execution  of  the  formal 
deed  and  the  disposal  of  the  property  in  accordance  with  the 
settlement  that  should  have  been  made  under  the  articles? 
Thus  the  general  rule  is,  that  parties,  seeking  a  specific  exe- 
cution of  such  articles,  must  be  those  who  come  strictly 
within  the  reach  and  influence  of  the  consideration  of  the 
marriage,  or  who  claim  through  them,  as  the  wife,  or  the 
husband,  and  the  issue  of  the  husband  or  wife,  or  both.  As 
a  general  rule,  mere  volunteers,  or  collateral  relatives  of 
husband  or  wife,  cannot  interfere  and  ask  for  a  specific  per- 
formance of  the  articles.*  (rt)  But  there  are  so  many  excep- 

»  Jervoise  v.  Northumberland,  1  J.  &  W.  559  ;  Woolmore  v.  Burrows, 
1  Sim.  512. 

2  Allen  r.  Henderson,  49  Pa.  St.  333. 

8  White  V.  Stanfield,  146  Mass.  424. 

*  Vernon  v.  Vernon,  2  P.  Wms.  594 ;  Edwards  v.  Warwick,  id.  171  ; 
Osgood  V.  Strode,  id.  245;  Ithell  v.  Beane,  1  Ves.  215;  1  Dick.  132;  Ste- 

(a)  In  Re  Cameron  and  Wells,  the  interest  of  the  collateral  is  or  is 

37  Ch.  D.  32,    37,  Kay,   J.,   said:  not   that  of   a  volunteer."     It  was 

"  When  any  collateral  takes  an  in-  there  held  that  the  rule  of  Newstead 

terest  under  a  marriage  settlement,  v.  Searles  (1  Atk.  265 ;  9  A.  C.  320, 

it  may  be  the  bargain  between  the  n.),  by  which  the  limitations  of  a 

husband  and  wife  that  the  collateral  widow's     marriage     settlement     in 

should  so  take ;  but  that  does  not  favor  of  her   children  by  a  former 

make  him  any  the  less  a  volunteer,  marriage  are  not  voluntary,  does  not 

because     no     consideration     moves  extend  to  the  like  limitations  in  the 

from  him,  which  is  the  test  whether  marriage  settlement  of  a  widower. 
VOL.  I.  — 34  5L9 


§  367.]  EXECUTORY  TRUSTS.  [CHAP.  XII. 

tions  and  qualifications  to  this  rule,  that  a  case  is  rarely 
decided  upon  it.  The  principle  is,  that,  to  bring  collateral 
relations  within  the  reach  and  influence  of  the  consideration, 
there  must  be  something  over  and  above  that  flowing  from 
the  immediate  parties  to  the  marriage  articles,  from  which 
it  can  be  inferred  that  relatives  beyond  the  issue  were  in- 
tended to  be  provided  for,  and  that,  if  the  provision  in  their 
behalf  had  not  been  agreed  to,  the  superadded  consideration 
would  not  have  been  given. ^  While  this  is  the  general  rule, 
the  court  seize  hold  of  the  slightest  valuable  consideration  to 
give  effect  to  the  settlement  in  favor  of  collateral  relatives; 
and  it  need  not  appear  that  these  slight  considerations  were 
inserted  in  favor  of  distant  relatives :  the  court  will  presume 
such  to  be  the  case.^  The  result  of  all  the  cases  is,  that,  if 
from  the  circumstances  under  which  marriage  articles  were 
entered  into  by  the  parties,  or  as  collected  from  the  face  of 
the  instrument  itself,  it  appears  to  have  been  intended  that 
the  collateral  relatives  in  a  given  event  should  take  the 
estate,  and  a  proper  limitation  to  that  effect  is  contained  in 
the  articles,  a  court  of  equity  will  enforce  the  trust  for  their 
benefit.  Such  parties  are  not  volunteers  outside  the  deed, 
but  come  fairly  within  the  influence  of  the  consideration 
upon  which  it  is  founded.  Such  consideration  extends 
through  all  the  limitations  of  the  articles  for  the  benefit  of 
the  remotest  persons  provided  for,  consistent  with  the  rules 
of  law. 3     But  of  course  there  is  a  more  direct  equity  in  favor 

phens  V.  Trueman,  1  Ves.  73  ;  Pulvertoft  v.  Pulvertoft,  18  Yes.  90 ;  2 
Kent,  Com.  172,  173  ;  Atherly  on  Mar.  Sett.  145  ;  Bradish  v.  Gibbs,  3 
Johns.  Ch.  550 ;  West  v.  Errissey,  2  P.  Wms.  349  ;  Kettleby  v.  Atwood, 
1  Vern.  298,  471  ;  Williamson  v.  Codrington,  1  Ves.  512 ;  Colman  v.  Sar- 
rel,  1  Ves.  Jr.  50 ;  3  Bro.  Ch.  13;  Ellison  v.  Ellison,  6  Ves.  662 ;  Graham 
V.  Graham,  1  Ves.  Jr.  275  ;  Wycherly  v.  Wycberly,  2  Eden,  177,  note ; 
Bunn  V.  Winthrop,  1  Johns.  Ch.  336  ;  Gevers  v.  Wright,  3  Green,  Ch. 
330. 

1  Osgood  V.  Strode,  2  P.  Wms.  245 ;  Goring  v.  Nash,  3  Atk.  186 ; 
Hamerton  v.  Whitton,  2  Wils.  356;  Williamson  v.  Codrington,  1  Ves. 
512  ;  Bleeker  v.  Bingham,  3  Paige,  246. 

2  Neves  v.  Scott,  9  How.  209 ;  Stephens  v.  Trueman,  1  Ves.  73 ;  Ed- 
wards V.  Warwick,  2  P.  Wms.  171. 

"  Neves  v.  Scott,  9  How.  210  ;  Canby  v.  Lawson,  5  Jones,  Eq.  32  ; 
530 


CHAP,  xir.]  HEIRS  and  purchase.  [§  3C9. 

of  a  wife  and  children.*  So  in  respect  to  chattel  interests,  it 
has  been  held  that  a  bond  under  seal,  though  voluntary,  will 
uphold  a  decree  for  the  execution  of  the  trust  in  favor  of 
those  whom  the  obligor  is  under  obligations  to  support,  as 
wife  or  children;  for  a  seal  in  law  imports  a  consideration.'-^ 
But  this  doctrine  seems  to  be  rejected ;  and  it  is  now  held 
that  neither  wife  nor  child  can  enforce  a  purely  voluntary 
contract  or  settlement.^  (a) 

§  368.  And  where  a  third  person  —  parent,  agent,  or 
friend  of  the  parties  —  holds  out  any  considerations  of  a 
pecuniary  nature  to  induce  a  marriage,  and  articles  are  drawn 
up,  and  a  marriage  takes  place,  equity  will  compel  the  party 
holding  out  the  inducements  to  make  them  good,  or  specifi- 
cally perform  the  articles.^ 

§  369.  If,  however,  in  an  executory  trust  created  in  a  will 
there  are  indications  of  an  intention  that  the  words  "heirs 
of  the  body"  shall  be  words  of  purchase  and  not  of  inheri- 
tance, they  will  receive  that  construction ;  that  is,  the  inten- 

Dennison  v.  Goehring,  7  Barr,  175  ;  King  v.  Whitely,  10  Paige,  465.  See 
this  matter  very  learnedly  discussed  in  Neves  v.  Scott,  9  Monthly  Law  Re- 
porter, 67,  Boston,  June,  184G.  This  decision,  however,  was  overruled  in 
Neves  v.  Scott,  9  How.  98.  The  case  was  again  discussed  before  the  State 
court  of  Georgia,  and  the  opinion  of  the  circuit  court  of  the  district  of 
Georgia  was  followed.  That  case  was  in  turn  overruled  in  13  How.  268. 
The  judgment  of  the  Supreme  Court  of  the  United  States  was,  that  on 
the  face  of  that  instrument  the  consideration  extended  to  brothers  and 
sisters  ;  and,  further,  that  it  was  an  executed  trust,  and  that  they  had  an 
interest. 

1  I'ulvertoft  r.  Pulvertoft,  18  Ves.  99. 

^  Bunn  V.  Winthrop,  1  Johns.  Ch.  336  ;  Minturn  v.  Seymour,  4  Johns. 
Ch.  500 ;  Lechmere  v.  Carlisle,  3  P.  Wms.  222 ;  Walwyn  v.  Coutts,  3  Mer. 
708;  Antrobus  v.  Smith,  12  Ves.  44;  Colman  i'.  Sarrel,  1  Ves.  Jr.  54; 
Beard  v.  Nutthall,  1  Vern.  427. 

8  Jefferys  v.  Jefferys,  1  Cr.  &  Phil.  138 ;  Ilolloway  v.  Headington,  8 
Sim.  325. 

*  Hammersley  v.  De  Biel,  2  CI.  &  Fin.  45. 

(a)  See  Thompson  v.  Tucker-Osborn,  111  Mich.  470  ;  supra,  §§ 
122,  note  (a),  162,  note  (a). 

531 


§  369.]  EXECUTORY  TRUSTS.  [CHAP.  XII. 

tion  of  tho  testator  will  be  carried  out,  if  it  is  sufficiently 
clear,  although  the  same  words  in  an  ordinary  grant  would 
create  an  estate  tail.  Thus,  if  there  are  other  words  in  the 
will  that  indicate  that  the  words  "heirs  of  the  body"  are 
words  of  designation,  and  not  of  inheritance,  such  heirs  will 
take  by  purchase,  and  the  first  taker  of  course  will  have  only 
an  estate  for  life.  Thus,  if  the  testator  direct  a  settlement 
on  A.  for  life  "without  impeachment  of  waste, "^  or  with  a 
limitation  "to  preserve  contingent  remainders,"^  or  if  he 
direct  that  "  care  be  taken  in  the  settlement  that  the  tenant 
for  life  shall  not  bar  the  entail, "  ^  the  superadded  words  show 
the  intention  to  be,  that  the  first  taker  shall  have  only  an 
estate  for  life,  with  no  power  over  the  inheritance.  So, 
where  a  gift  was  in  trust  for  the  separate  use  of  a  married 
woman  for  life,  she  alone  to  receive  the  rent,  and  her  hus- 
band not  to  intermeddle,  and,  after  her  decease,  to  the  heirs 
of  her  body,  the  wife  took  only  for  life,  and  the  words  "heirs 
of  her  body  "  were  words  of  purchase ;  for  if  the  wife  takes 
the  inheritance  in  tail,  the  husband  will  have  curtesy,  which 
would  be  contrary  to  the  clause  against  his  intermeddling.* 
So,  where  a  testator  directed  an  estate  to  be  settled  on  a 
married  woman  for  life  for  her  separate  use,  and  at  her  death 
on  her  issue,  she  was  not  tenant  in  tail ;  for  there  would  be 
only  an  equitable  estate  in  her,  while  a  legal  estate  would 
vest  in  her  issue,  and  the  two  estates  could  not  coalesce  in 
such  manner  as  to  make  her  tenant  in  tail.^  So  a  direction 
to  settle  land  on  A.  and  the  heirs  of  his  body  "  as  counsel 
shall  advise, "  ®  or  as  "  the  executors  shall  think  fit, " '  implies 

1  Glenorchy  v.  Bosville,  Ca.  t.  Talb.  3 ;  1  Lead.  Cas.  Eq.  1,  and  notes. 

2  Pappillon  V.  Voice,  2  P.  Wms.  471 ;  Rochford  v.  Fitzmaurice,  1  Conn. 
&  Laws,  158. 

8  Leonard  v.  Sussex,  2  Yern.  526. 

4  Roberts  r.  Dixwell,  1  Atk.  607  ;  West,  Ca.  t.  Hardw.  536 ;  Turner  v. 
Sargent,  17  Beav.  515  ;  Stanley  v.  Jackman,  5  W.  R.  302;  Stonor  v.  Cur- 
wen,  5  Sim.  264;  Shelton  v.  Watson,  16  Sim.  542. 

6  Stonor  V.  Curwen,  5  Sim.  268;  Verulam  v.  Bathurst,  13  Sim.  386; 
Coape  V.  Arnold,  2  Sm.  &  Gif.  311 ;  4  De  G.,  M.  &  G.  574.  And  see  Col- 
lier V.  McBean,  34  Beav.  426. 

6  White  V.  Carter,  2  Eden,  366 ;  Amb.  670. 

T  Read  v.  Snell,  2  Atk.  642. 
532 


CHAP.    XII.]  HEIRS   AND   PURCHASE.  [§  371. 

that  a  simple  estate  tail  is  not  intended,  for  if  it  was  there 
would  be  no  need  of  the  additional  words.  And  whore  the 
trust  was  to  settle  on  A.  for  life  without  impeachment  of 
waste,  remainder  to  his  issue  in  »trict  settlement,  the  court 
directed  the  estates  to  he  settled  on  A.  for  life,  without  im- 
peachment for  waste,  remainder  to  his  sons  successively  in 
tail  male,  remainder  to  his  daughters  as  tenants  in  common 
in  tail  male,  with  cross-remainders  in  tail  male,  and  with 
limitations  to  trustees  to  preserve  contingent  remainders.^ 

§  370.  Where  a  testator  devised  his  estate  to  trustees  for 
the  term  of  six  years,  and  to  be  then  divided  among  his  chil- 
dren or  their  issue,  and  conveyances  to  be  given  therefor,  and 
directed  that  "in  each  deed  or  writing  to  any  of  my  children 
shall  be  inserted  and  expressed  a  clause  limiting  such  grant 
or  interest  conveyed  to  the  grantee  for  life,  with  remainder 
over  to  the  right  heirs  of  such  grantee,  their  heirs  and  assigns 
forever,''''  it  was  held  that  the  deeds  must  be  so  drawn  as  to 
give  the  children  a  life-estate  only,  and  not  a  fee  in  their 
shares.^  The  same  rule  of  construction  has  been  established 
and  enforced  in  Georgia,^  and  in  Tennessee,^  and  has  been 
recognized  in  South  Carolina,^  Maryland, ^  and  Pennsylvania. ^ 

§  371.  It  will  be  observed  that  "heirs  of  the  body  "  and 
"  issue  "  are  not  synonymous  terms.     "  Heirs  "  are  technical 

1  Trevor  v.  Trevor,  13  Sim.  108  ;  1  II.  L.  Cas.  239 ;  Coape  r.  Aruold, 
2  Sm.  &  Gif.  311 ;  4  De  G.,  M.  &  G.  574. 

2  Wood  r.  Burliam,  6  Paige,  515,  affirmed  on  appeal,  27  Wend.  9. 
The  rule  in  Shelley's  case  was  in  force  in  New  York  at  the  time,  and 
would  have  applied  to  this  case  if  it  had  not  been  an  executory  trust. 
The  rule  in  Shelley's  case  was  soon  after  abrogated  in  that  State,  and  the 
decision  has  ceased  to  be  important  ;  nor  is  the  subject-matter  now  under 
discussion  of  importance  in  any  State  where  the  rule  in  Shelley's  case  is 
abolished  by  statute. 

8  Edmondson  v.  Dyson,  2  Kelly,  307;  Wiley  r.  Smith,  3  Kelly,  551, 
559 ;  Neves  v.  Scott,  9  How.  197  ;  13  How.  268. 
•*  Loring  v.  Hunter,  8  Yerg.  4. 

6  Garner  v.  Garner,  1  Des.  437;  Porter  v.  Doby,  2  Rich.  Eq.  49. 
«  Horner  v.  Lyeth,  4  II.  &  J.  431. 
f  Eiudlay  v.  Kiddle,  3  Biuney,  139. 

533 


§  371.]  EXECUTOllY   TKUSTS.  [CHAP.    XII. 

words  of  limitation,  while  the  word  "  issue  "  is  prima  facie  a 
word  of  purchase ;  and  courts  have  ordered  a  strict  settlement 
when  the  word  "  issue  "  was  used,  when  it  would  probably  have 
been  otherwise  if  the  word  "heir  "  had  been  used.^  (a)  The 
words  "heirs of  the  body, "^ and  " issue, "^  embrace  daughters; 
for  they  equally  answer  the  description,  and  are  equally  the 
objects  of  bounty;  and  where  the  words  are  words  of  pur- 
chase, the  settlement,  in  default  of  sons,  will  be  made  upon 
daughters,  as  tenants  in  common  in  tail,  with  cross-remain- 
ders.^    In  the  United  States,  the  settlement  would  be  made 

1  Moure  v.  Meure,  2  Atk.  265 ;  Haddelsey  v.  Adams,  22  Beav.  276 ; 
Rochford  v.  Fitzmaurice,  2  Conn.  &  Laws.  158  ;  Bastard  v.  Proby,  2 
Cox,  6 ;  Dodson  v.  Hay,  3  Bro.  Ch.  405  ;  Stonor  v.  Curwen,  5  Sim.  264 ; 
Home  V.  Barton,  G.  Coop.  257  ;  Crozier  v.  Crozier,  2  Conn.  &  Laws.  311; 
Ashton  V.  Ashton,  cited  in  Bagshaw  v.  Spencer,  1  ColL  Jur.  402 ;  McPher- 
son  V.  Snowden,  19  Md.  197.  Where  a  testator  intends  the  estate  to  go 
to  the  whole  body  of  persons,  in  legal  succession,  constituting  in  law  the 
entire  line  of  descent  lineal,  he  evidently  means  the  same  thing  as  if  he 
had  said  "  issue,"  or  "  heirs  of  the  body ; "  or  if  he  intends  it  to  go  to  the 
whole  line  of  descent,  lineal  and  collateral,  he  means  the  same  thing  as  if 
he  had  used  the  term  "heirs,"  which,  as  a  word  of  art,  describes  precisely 
the  same  line  of  descent.  Per  Agnew,  J. ,  in  Yarnall's  App. ,  70  Penn. 
St.  340,  And  see  Kleppner  v.  Laverty,  70  Penn.  St.  70 ;  Kiah  v.  Grenier, 
1  N.  Y.  Sup.  Ct.  388. 

2  Bastard  v.  Proby,  2  Cox,  6. 

8  Meure  v.  INIeure,  2  Atk.  265  ;  Trevor  v.  Trevor,  13  Sim.  108  ;  Ashton 
V.  Ashton,  ut  supra. 

*  Marryat  v.  Townley,  1  Ves.  105;  Meure  v.  Meure,  2  Atk.  265 ;  Tre- 
vor V.  Trevor,  13  Sim.  108;  1  H.  L.  Ca.  239;  Bastard  v.  Proby,  2  Cox,  6; 
Ashton  V.  Ashton,  in  Spencer  v.  Bagshaw,  ut  supra  ;  Shelton  v.  Watson, 
16  Sim.  543. 

(a)  The  word  "  issue  "  in  a  deed  an  adopted  child.      Buckley  v.  Fra- 

or  will,  when  used   as   a  word   of  sier,    153    Mass.    525.     A    gift    to 

purchase,  means,  in  the  absence  of  "  children  "  does  not  include  grand- 

an  intention   disclosed  to  the  con-  children.     Pride  v.  Fooks,  3  De  G. 

trary,  descendants  generally.  Drake  &  J.  252 ;  Osgood  v.  Lovering,  33 

r.  Drake,  134  N.  Y.  220,  224 ;  Soper  Maine,  464.  See  Williams  v.  Knight, 

r.    Brown,    136    N.    Y.    244,    248;  18  R.   L  333  ;  Bailey  v.  Hawkins, 

Chwatal   v.    Schreiner,   148   N.  Y.  id.  573  ;  Edgerly  v.  Barker,  66  N. 

683  ;  Hall  v.  Hall,  140  Mass.  267 ;  H.  434.     "  Children  "  in  a  will  may 

Jackson  v.  Jackson,  153  Mass.  374.  mean   step-children.     In  re  Jeans, 

In  a  statute  "issue"  may  include  72  L.  T.  835. 
534 


CHAP.    XII.]  HEIRS    AND    PURCHASE.  .  [§  373. 

upon  sons  and  daugliters  in  common,  with  cross-remainders 
in  default  of  issue,  unless  the  direction  was  to  settle  upon 
some  particular  one  of  the  heirs  of  the  body  or  issue. 

§  372.  If  the  limitations  of  an  executory  trust  are  imper- 
fectly or  defectively  declared  in  a  will,  the  court  will  rectify 
the  limitations,  and  order  the  settlements  to  be  made  in 
accordance  with  the  intention  of  the  testator,  and  to  be  drawn 
up  in  proj)er  form  to  elfectuate  that  intention.^  But  if  a  tes- 
tator undertake  to  be  his  own  conveyancer,  and  himself  draw 
up  in  his  will  all  the  particulars  of  the  limitations  upon  which 
he  desires  his  property  to  be  settled,  intending  them  to  be  final 
and  to  be  carried  into  effect  in  the  trusts,  the  court  is  bound 
by  the  words,  as  in  Austen  v.  Taylor,  where  Lord  Northing- 
ton  said  that  "  the  testator  had  referred  no  settlement  to  the 
trustees  to  complete,  but  had  declared  his  own  uses  and 
trusts,"  and  that  there  was  no  authority  in  the  court  to  vary 
them.  2 

§  373.  When  a  testator  has  devised  lands  in  strict  settle- 
ment, and  then  devises  personal  chattels  as  heirlooms,  to  be 
held  by,  or  in  trust  for,  the  parties  entitled  to  the  use  of  the 
real  estate  under  the  limitations  of  the  settlement ;  or  when 
he  expresses  a  desire  that  the  heirlooms  should  be  held  upon 
the  same  trusts  as  the  real  estate,  —  "  so  far  as  the  rules  of 
law  and  equity  will  permit,"  the  tenant  for  life  will  have  the 
use  of  the  heirlooms,  and  they  will  vest  absolutely  in  the  first 
tenant  in  tail,  upon  his  birth,  though  he  die  immediately 
after.  ^     In  such  cases,  the  court  regards  the  trust,  either  as 

1  Franks  v.  Price,  3  Beav.  182;  Doncaster  v.  Doncaster,  3  K.  &  J.  26; 
Ptochfort  V.  Fitzmaurice,  1  Conn.  &  Laws.  173;  2  Dr.  &  War.  21. 

2  Austen  v.  Taylor,  1  Eden,  368.  This  case,  however,  has  been  criti- 
cised.    See  Green  v.  Stephens,  19  Ves.  76  ;  Jervoise  v.  Northumberland, 

1  J.  &  W.  572.     And  see  East  v.  Twyford.  9  Hare.  713  ;  Meure  v.  Meure, 

2  Atk.  205 ;  Harrison  v.  Naylor.  2  Cox,  247. 

«  Foley  V.  Burnell,  1  Bro.  Ch.  274  ;  Vaughan  v.  Bunslem,  3  Bro.  Ch. 
101  ;  Newcastle  v.  Lincoln,  3  Ves.  387;  Carr  c  Erroll,  14  Ves.  478;  Traf- 
ford  V.  Trafford,  3  Atk.  347 ;  Doncaster  v.  Doncaster.  3  K.  &  J.  26 ;  Row- 
land V.  Morgan,  6  Hare,  463;  2  Phill.  G74;  Gower  v.  Grosvenor,  Barn. 

boo 


§  374.]  EXECUTORY  TRUSTS.  [CHAP.  XII. 

executed,  or,  if  the  trust  is  executory,  that  it  has  no  authority 
to  insert  a  limitation  over  in  case  of  the  tenant  in  tail  dying 
under  twenty-one.  But  such  a  limitation  over  is  not  illegal ; 
and  if  the  bequest  of  the  heirlooms  is  clearly  executory, 
and  if  the  intention  of  the  testator  is  plainly  manifested  that 
no  person  shall  take  the  chattels  absolutely  who  does  not  live 
to  become  possessed  of  the  real  estate,  the  court  will  execute 
the  intention  by  directing  the  insertion  of  a  limitation  that 
the  absolute  interest  of  the  first  tenant  in  tail,  if  he  should 
die  under  twenty-one,  should  go  over  to  the  next  person  in 
remainder.^  And  so  where  the  absolute  vesting  of  the  chat- 
tels is  coupled  with  the  actual  possession,  and  is  therefore 
suspended  until  the  death  of  the  tenant  for  life,  the  chattels 
will  vest  in  the  child,  who,  after  the  death  of  the  tenant  for 
life,  shall  fulfil  all  the  requisites  of  being  tenant  in  tail  in 
possession.  2  (a) 

§  374.  If  the  words  of  a  will,  taken  in  their  ordinary  sense, 
create  a  joint-tenancy^  the  court  cannot  order  a  settlement 
giving  a  tenancy  in  common,  as  it  may  do  under  marriage 
articles.  But  in  some  cases,  where  a  testator  is  providing 
for  his  children,  or  where  a  grandparent  in  loco  'parentis  is 
providing  for  his  grandchildren,  the  court  will  order  a  settle- 
ment that  will  create  a  tenancy  in  common.  ^     And,  generally, 

Ch.  54 ;  5  Madd.  337,  overruled ;  Evans  v.  Evans,  17  Sim.  108  ;  Tolle- 
mache  v.  Coventry,  2  CI.  &  Fin.  611;  8  Blic^h  (n.  s.),  547;  Stapleton  v. 
Stapleton,  2  Sim.  (n.  s.)  212  ;  Deerhurst  v.  St.  Albans,  5  Madd.  232,  over- 
ruled ;  Scarsdale  v.  Curzon,  1  John.  &  H.  40,  where  all  the  cases  are  cited 
and  commented  on. 

1  Potts  V.  Potts,  3  Jo.  &  Lat  353;  1  H.  L.  Cas.  671;  Trafford  v.  Traf- 
ford,  3  Atk.  347  ;  Lincoln  v.  Newcastle,  3  Ves.  3^7. 

2  Scarsdale  v.  Curzon,  1  John.  &  II.  40. 

8  Synge  v.  Hales,  2  B.  &  B.  499  ;  Marryatw.  Townley,  1  Ves.  102.  But 
there  were  other  circumstances  in  these  cases  that  indicated  a  tenancy  in 
common.     McPherson  v.  Snowden,  19  Md.  197. 

(a)  In  a  devise  of  plate  and  a    trust  or  cut  down  the  devisee's  in- 
leasehold  house,  the  wosds  "to  be    terest  to  a  life  estate.      /n  re  John- 
enjoyed  with   and   to   go  with  the    ston,  26  Ch.  D.538. 
title,"  do  not  create  an  executory 
536 


CHAP.   XII.]  WHAT   POWERS   WILL   BE   INSERTED.  [§  375. 

executory  trusts  under  wills  will  be  construed  in  the  same 
manner  as  marriage  articles  entered  into  after  marriage.' 

§  375.  When  a  settlement  is  directed  in  an  executory 
trust,  but  there  is  no  direction  as  to  the  powers  to  be  given 
under  it,  the  court  cannot  order  the  insertion  of  any  powers,^ 
except  perhaps  the  power  of  leasing,  which  generally  is  an 
implied  power  to  enable  a  party  to  enjoy  the  estate.^  But  if 
the  executory  articles  or  the  will  contain  a  direction  to  in- 
sert the  ^^ usual poivers,^^  powers  to  lease  for  twenty-one  years,* 
of  sale  and  exchange,^  of  varying  the  securities,^  of  appoint- 
ing new  trustees,"  and  (according  to  the  nature  of  the  prop- 
erty) of  partition,  of  leasing  mines,  and  of  granting  building 
leases,  will  be  inserted.^  But  there  is  a  distinction  between 
powers  for  the  management  and  enjoyment  of  the  estate,  and 
powers  which  are  personally  beneficial  to  one  or  more  partic- 
ular persons,  such  as  powers  of  jointure,  to  charge  portions, 
or  to  raise  money  for  a  particular  purpose.^  The  court  can- 
not therefore  order  these  latter  powers  to  be  inserted  under 
the  direction  to  insert  the  itsual  powers,  for  there  is  no  rule 
by  which  the  court  could  be  governed  in  reducing  the  corpus 
of  the  estate. ^^  So  if  certain  particular  powers  are  directed 
to  be  inserted,  the  usual  powers  will  be  qualified  by  the  direc- 
tion. Thus,  where  it  was  directed  that  the  settlement  should 
contain  a  power  of  leasing  for  twenty-one  years,  a  power  of 

^  Rochford  v.  Fitzmaurice,  1  Conn.  &  Laws.  158. 

2  Wheete  v.  Hall,  17  Ves.  80 ;  Brewster  v.  Angell,  IJ.  &  W.  628. 

*  Woolmore  v.  Burrows,  1  Sim.  518  ;  Fearne's  P.  W.  310  ;  but  see 
the  late  cases,  Turner  v.  Sargent,  17  Beav.  515  ;  Scott ».  Steward,  27  Beav. 
367  ;  Charlton  v.  Kendall,  1  Hare,  296. 

*  Hill  V.  Hill,  6  Sim.  144  ;  Bedford  v.  Abercorn,  1  M.  &  Cr.  312. 

6  Hill  V.  Hill,  6  Sim.  144;  Bedford  w.  Abercorn,  1  M.  &  Cr.  312 ;  Teake 
V.  Penlington,  2  V.  &  B.  311. 

6  Sampayo  v.  Gould,  12  Sim.  426. 

'  Lindow  v.  Fleetwood,  6  Sim.  152;  Sampayo  v.  Gould,  12  Sim.  426; 
Brewster  v.  Angell,  IJ.  &  W.  028. 

8  Hill  r.  Hill,  6  Sim.  145;  Bedford  v.  Abercorn,  1  M.  &  Cr.  312. 

9  Hill  V.  Hill,  6  Sim.  144. 

i»  Higginsou  c.  Barneby,  2  S.  &  S.  51G. 

5  Of* 
01 


§  375.]  EXECUTORY  TRUSTS.  [CHAP.  XII. 

sale  and  exchange,  and  of  appointment  of  new  trustees,  it 
was  held  that  a  power  of  granting  building  leases  could  not 
be  inserted.^  So  the  powers  must  be  inserted  and  executed 
as  they  are  directed ;  as  where  a  power  was  directed  to  be 
inserted  of  selling  and  exchanging  estates  in  one  county,  and 
all  other  usual  powers^  it  was  held  that  the  powers  could  not 
be  extended  to  estates  in  other  counties.  ^  And  where  a  tes- 
tator directed  the  insertion  of  a  power  of  making  leases, 
and  otherwise  according  to  circumstances,  and  of  appointing 
new  trustees,  the  court  refused  to  insert  a  power  of  sale  and 
exchange,  saying  that,  if  where  nothing  is  expressed  nothing 
can  be  implied,  it  is  impossible,  where  something  is  ex- 
pressed, to  imply  more  than  is  expressed,  especially  where 
the  will  notices  what  powers  are  to  be  given. ^  But  under 
particular  directions  as  to  certain  powers,  and  general  direc- 
tions that  other  usual  powers  should  be  inserted,  the  two 
directions  being  separate  and  independent  of  each  other,  it 
was  held  that  a  power  to  appoint  new  trustees  might  be  in- 
serted.* Where  proper  powers  of  making  leases  or  other- 
wise were  directed  to  be  reserved  in  the  settlement  to  the 
tenants  for  life  while  qualified  to  exercise  them,  and  when 
disqualified  to  the  trustees,  and  a  power  of  sale  and  exchange 
was  inserted  in  the  settlement.  Lord  Eldon  held  that  it  was 
improperly  introduced;^  and  Sir  T.  Plummer  gave  a  similar 
decision,  on  the  ground  that  the  tenant  for  life  ought  not  to 
have  a  power  of  sale  unless  it  was  expressly  directed,  nor 
ought  the  trustees  to  have  such  a  power  in  the  absence  of  an 
express  direction.^  But  where  there  was  a  settlement  of 
stock  with  a  power  of  varying  the  securities,  and  also  a  cove- 
nant to  settle  real  estate  upon  the  same  trusts  and  with  like 
powers,  it  was  held  that  a  power  to  sell  and  exchange  was 

^  Pearse  v.  Baron,  Jac.  158. 
2  Hill  V.  Hill,  6  Sim.  141. 

8  Brewster  v.  Angell,  1  J.  &  "W.  625;  Home  v.  Barton,  Jac.  439. 
4  Lindow  v.  Fleetwood,  6  Sim.  152. 
6  Brewster  v.  Angell,  IJ.  &  W.  625. 
6  Home  V.  Barton,  Jac.  437. 
538 


CUAP.    XII.]         WHAT    TOWERS    WILL   BE    INSERTED.  [§  376. 

properly  introduced  in  analogy  to  the  j)Ower  of  varying  the 
securities.^ 

§  37G.  In  drawing  up  the  final  deed  of  settlement  under 
executory  articles  or  a  will,  the  intention  of  the  settlor  is  to 
be  carried  out  if  possible.  If  the  intention  conflicts  with  any 
of  the  rules  of  law,  it  shall  be  executed  so  far,  and  as  near 
as  it  can  be.  The  doctrine  of  cy  pres  applies  to  this  class  of 
executory  trusts.  Thus,  if  a  settlement  is  directed  which 
would  create  a  perpetuity,  the  court  will  order  a  settlement 
which  shall  carry  the  trust  as  far  as  it  can  extend  without 
running  counter  to  the  rules  against  perpetuities.  As  where 
there  was  a  devise  to  a  corporation  in  trust  to  convey  to  A. 
for  life,  and  after  his  death  to  his  first  son  for  life,  and  so  on 
to  the  first  son  of  such  first  son  for  life;  and,  in  default  of 
male  issue,  then  to  B.  for  life,  and  to  his  son  for  life  after 
the  death  of  B.,  and  so  as  in  the  case  of  A.,  Lord  Covrper 
said  the  attempt  to  create  a  perpetuity  was  vain,  yet  the 
directions  should  be  complied  with,  so  far  as  consistent  with 
the  law,  and  he  directed  that  all  the  sons  already  born 
should  take  estates  for  life  in  succession,  with  limitations  to 
unborn  sons  in  tail.^  But  if  the  devise  is  such  that  it  cannot 
be  carried  into  effect,  in  any  form  approximating  the  inten- 
tion of  the  testator,  without  contravening  the  law  against 
perpetuities  or  remoteness,  the  whole  trust  will  be  void.^ 

1  "William  v.  Caxter,  Append,  to  Treatise  on  Powers,  945  (Sth  ed.)  ; 
Elton  V.  Elton,  27  Beav.  634;  Home  i-.  Barton,  Jac.  437. 

2  See  §  383 ;  Humberstou  v.  Humberston,  1  P.  Wms.  332 ;  2  Veru. 
737;  Pr.  Ch.  455;  Parfitt  v.  Hember,  L.  R.  4  Eq.  443;  Peard  v.  Keke- 
wick,  15  Beav.  173;  Lyddon  r.  Ellison,  19  Beav.  565;  "Williams  v.  Teal, 
6  Ilaro,  239,  and  cases ;  "Vanderplank  v.  King,  3  Uare,  1 ;  Mouypenuy  v. 
Uering,  IG  M.  &  W.  418. 

«  Blagrave  v.  Hancock,  16  Sim.  371. 


539 


377.]  PERPETUITIES   AND    ACCUMULATIONS.      [CHAP.    XIII. 


CHAPTER  XIII. 

PEEPETUITIES   AND  ACCUMULATIONS. 

§  377.    Definitions  of  a  perpetuity. 

§  378.     Executory  devises —  springing  and  shifting  uses. 

§  379.     Growth  of  the  rule  against  perpetuities. 

§  380.     Application  of  the  rule.     Indefinite  failure  of  issue. 

§  381.  Applies  to  the  possible  vesting  of  estates  —  not  to  the  actual. 

§  382.  Applies  equally  to  trust  and  legal  estates. 

§  383.  An  equitable  interest  that  may  not  vest  within  the  rule  is  void.    §  23. 

§  384.  Distinction  between  private  trusts  and  charitable  trusts. 

§  385.  A  proper  trust  to  raise  money  to  be  applied  contrary  to  the  rule. 

Making  estates  inalienable. 

§  386.  Equitable  estates  cannot  be  made  inalienable  in  England. 

§§  386  a,  386  6.     How  they  may  be  made  inalienable  in  some  of  the  United  States. 

§  387.  Exception  in  the  case  of  married  women. 

§  388.  How  trusts  can  be  limited,  so  that  cestui  que  trust  cannot 

alienate.     See  §  81.5  a. 

§  389.  Limitation  of  personal  estate  to  such  tenant  in  tail  as  first  attains 

twenty-one. 

§  390.     When  courts  will  alter  trusts  and  when  not. 
§§  391,  392.     Statutes  of  various  States  in  relation  to  perpetuities. 
Accumulations. 

§  393.  Rule  respecting  trusts  for  accumulations. 

§  394.  In  England  the  rule  was  altered  by  the  Thellusson  Act. 

§  395.  Construction  of  the  Thellusson  Act. 

§  396.  Rule  against  accumulations — when  it  applies  and  when  not, 

§  397.  Application  of  the  income  in  cases  of  illegal  directions  to  accumu- 

late. 

§  398.  Statutes  in  various  States  as  to  accumulations. 

§  399.  Accumulations  for  charitable  purposes. 

§  400.  Accumulations  in  cases  of  life  insurance. 

§  377.  That  the  same  rules  apply  to  trusts  as  to  legal 
estates  is  further  apparent  from  the  rule  against  perpetuities. 
A  perpetuity  has  been  declared  to  be  "  an  estate  unalienable, 
though  all  mankind  should  join  in  the  conveyance ;  "  ^  and 
an  executory  devise  is  said  to  be  "  a  perpetuity  as  far  as  it 
goes. "     Again,  it  has  been  said,  that  "  a  perpetuity  is  when 

1  Scattergood  v.  Edge,  Salk.  229. 
540 


CHAP.    XIII.]  DEFINITIONS    OF   A   PERPETUITY.  [§  377. 

if  all  that  have  interest  join,  yet  they  cannot  pass  the  estate. " ' 
These  are  characteristics  of  a  perpetuity.  There  arc  other 
descriptions  given,  as  that  "a  perpetuity  is  a  thing  odious  in 
the  law,  and  destructive  totho  commonwealth:  it  would  stop 
commerce  and  prevent  the  circulation  of  property." ^  Others 
have  described  the  rule  of  law  as  respects  the  period  of  re- 
moteness, rather  than  the  thing  itself  called  a  perpetuity ;  ^ 
thus,  "  a  perpetuity  is  a  limitation  tending  to  take  the  subject 
out  of  commerce  for  a  longer  period  than  a  life  or  lives  in 
being  and  twenty-one  years  beyond,  and,  in  the  case  of  a 
posthumous  child,  a  few  months  more,  allowing  for  the  term 
of  gestation. "  ^  Mr.  Saunders  says  :  "  A  perpetuity  may  be 
defined  to  be  a  future  limitation,  restraining  the  owner  of 
the  estate  from  alienating  the  fee-simple  of  the  property, 
discharged  of  such  future  use  or  estate,  before  the  event  is 
determined,  or  the  period  is  arrived,  when  such  future  use 
or  estate  is  to  arise.  If  that  period  is  within  the  bound  pre- 
scribed by  law,  it  is  not  a  perpetuity."^  This  describes  the 
thing  itself,  and  not  the  rule  of  law,  or  the  length  of  time, 
which  may  vary.  Mr.  Lewis  gives  a  fuller  definition :  "  A 
perpetuity  is  a  future  limitation,  whether  executory,  or  by 
way  of  remainder,  and  of  either  real  or  personal  property, 
which  is  not  to  vest,  until  after  the  expiration  of,  or  will  not 
necessarily  vest  within,  the  period  fixed  and  prescribed  by 
law  for  the  creation  of  future  estates  and  interests;  and 
which  is  not  destructible  by  the  persons  for  the  time  being 
entitled  to  the  property,  subject  to  the  future  limitation, 
except  with  the  concurrence  of  the  individual  interested 
imder  that  limitation."  ^     If  such  person  is  not  yet  in  being, 

1  Washborae  v.  Downes,  1  Ch.  Cas.  213. 

2  Duke  of  Norfolk's  Case,  1  Vern.  164. 
8  Stanley  v.  Leigh,  2  P.  Wms.  688. 

4  Rand.  Perp.  48. 

6  Uses  and  Trusts,  204. 

^  Lewis  on  Perpetuity,  164.  Jarman's  Treatise  on  Wills  contains  this 
marked  sentence  :  "  Te  teneam  moriens  is  the  dying  lord's  apostrophe  to 
his  manor,  for  which  he  is  forging  these  fetters  that  seem,  by  restricting 
the  dominion  of  others,  to  extend  his  own."  1  Jar.  on  Wills,  226,  note 
(ed.  1861). 

541 


§  378.]  PERPETUITIES   AND   ACCUMULATIONS.      [CHAP.    XIII. 

as  he  may  not  be  after  an  extended  period,  of  course  the 
estate  cannot  be  conveyed,  even  if  all  the  world  join  in  the 
deed. 

§  378.  Executory  devises  are  a  species  of  testamentary 
dispositions,  allowed  by  courts  of  law,  and  when  properly 
exercised,  they  pass  the  legal  estate  or  interest  to  all  persons 
in  favor  of  whom  the  dispositions  are  made.  They  are  de- 
vises to  take  effect  at  a  certain  time  in  the  future,  or  upon  a 
certain  event,  and  in  favor  of  certain  persons.  Limitations 
by  way  of  springing  or  shifting  uses  are  similar  in  effect, 
except  that  they  are  created  by  deeds  iiiter  vivos,  and  are 
based  upon  the  statute  of  uses.  Whenever  the  event  happens 
when  a  shifting  or  springing  use  is  to  take  effect,  the  statute 
of  uses  vests  the  legal  seizin  and  ownership  in  the  person 
entitled  by  virtue  of  the  use.  These  executory  devises,  and 
shifting  and  springing  uses,  must  vest  in  the  persons  intended 
to  be  benefited  within  the  time  allowed  by  law,  or  they  will 
be  declared  illegal  and  of  no  effect.  The  same  rules  apply 
in  equity  to  trusts.  In  cases  of  trusts  the  legal  estate  is 
vested  in  certain  trustees,  and  their  heirs ;  but  the  beneficial 
interest,  or  equitable  estate,  is  given  by  the  grantor,  testator, 
or  settlor  to  such  person  or  persons,  and  upon  such  terms  and 
upon  such  events,  as  he  shall  declare.  The  settlor  can  change 
and  shift  the  beneficial  enjoyment  of  the  equitable  estate  from 
one  person  to  another,  in  the  future,  in  a  manner  analogous 
to  the  limitations  of  springing  or  shifting  uses  under  the 
statute  of  uses.^  (a)   Courts  of  equity  always  take  special  care 

1  Harrison  v.  Harrison,  36  N.  Y.  543. 

(a)  See /n  re  Morgan,  24  Ch.  D.  tory  devise.     Glover  v.  Condell,  163 

114;  Welch  v.  Brimmer,  169  Mass.  111.  566,  592;    overruling  Ewing  v. 

204;  Barney  V.  Arnold,  15  R.  1.78;  Barnes,  156  111.  61.     Shifting  and 

Brown  v.  Addison  G.  Hospital,  155  springing  uses  and  executory  devises 

Mass.  323;    Smith  v.  Kimbell,  153  are  all  subject  to  the  rule  against 

111.  368 ;    Powers  v.  BuUwinkle,  33  perpetuities,   even   when  alienable. 

S.  C.  293.     A  fee  cannot  be  limited  Gray  on  Perpetuities,  §§  268,  317. 

upon   a  fee  by  deed,  but  it  can  be  In  the  case  of  a  condition,  the  estate 

so  limited  by  will  by  way  of  execu-  is  to  revert  to  the  grantor  or  his 
542 


CHAP.   XIII.]  DEVELOPMENT   OF  THE   RULE.  [§  379. 

tliat  future  estates  or  interests  shall  not  be  destroyed  by  the 
present  user  of  the  property;  and  that  the  limitations  of 
future  equitable  interests  shall  not  transcend  the  limits  as- 
signed for  the  limitation  of  similar  legal  interests  or  execu- 
tory devises,  and  shifting  and  springing  uses  at  law. 

§  379.  The  rule  against  perpetuities  has  been  gradually 
established  by  judicial  decisions,  and  affords  a  most  notable 
instance  of  the  nice  adaptation  of  the  principles  of  the  com- 
mon law  to  the  decision  of  a  question  which  requires  at  once 
a  due  regard  for  the  rights  of  persons  and  property,  and  a 
careful  consideration  of  these  larger  principles  of  puldic 
policy  so  essential  to  the  welfare  of  communities  and  States. 
For  public  policy  is  opposed  to  the  perpetual  settlement  of 
property  in  families  in  such  manner  that  it  is  forever  inalien- 
able, or  inalienable  so  long  as  there  may  be  a  person  to  take, 
answering  the  designation  of  some  testator  who  died  genera- 
tions before.  The  first  stand  of  the  judges  was  to  allow  only 
those  limitations  which  would  take  effect  at  the  end  of  one 
life  from  the  death  of  the  testator.^  This  was  afterwards 
modified  to  include  two  or  more  lives  in  being,  and  running 
at  the  same  time,  "or  where  the  candles  are  all  burning  at 
once ; "  for  it  is  plain  that  such  a  space  of  time  is  only  one 

1  Pells  V.  Brown,  Cro.  Jac.  590 ;  1  Eq.  Cas.  Ab.  187,  c.  4  (a.  d.  1621)  ; 
see  Snow  v.  Cutler,  1  Lev.  135,  t.  Raym.  102;  1  Keb.  151,  752,  800;  2 
Keb.  11,  145,  296;  1  Sid.  153. 

heirs,  but  in  a  conditional  limitation  to  A.  for  life,  and  upon  his  decease 
or  an  executory  devise,  it  is  limited  to  the  use  of  such  child  or  children 
over  to  other  persons.  Even  in  the  of  A.  then  living,  and  such  issue 
case  of  a  condition,  the  power  of  then  living  of  a  deceased  child  of  A. 
alienation  may  be  restricted,  though  as  either  before  or  after  his  death 
it  cannot  l)e  entirely  taken  away,  shall  become  of  age,  or  die  under 
In  re  Dugdale,  38  Ch.  D.  170,  179;  age  and  leave  issue,  is  an  executory 
Potter  V.  Couch,  141  U.  S.  296,  315  ;  devise  and  not  a  contingent  re- 
Sellers  V.  Reed,  88  Va.  377.  An  mainder.  Dean  v.  Dean,  [1891]  3 
executory  devise  is  valid  under  the  Ch.  1.50.  See  Symes  v-  Symes, 
rule  against  perpetuities  when  the  [1896]  1  Ch.  272.  In  construing  a 
limitation  over  is  determined  at  will,  a  remainder  will  always  be 
the  death  of  a  grandchild.  Naylor  preferred  to  an  executory  devise. 
V.  Godman,  109   Mo.  543.     A  gift  Watson  v.  Smith,  110  N.  C.  6. 

543 


§  379.]  PERPETUITIES   AND   ACCUMULATIONS.      [CHAP.   XIII. 

life  in  being, — that  of  the  longest  liver.'  The  next  step 
was  much  debated;  but  it  was  finally  settled,  that  an  execu- 
tory devise  might  be  made  to  vest  at  the  end  of  lives  in  being 
and  twenty-one  years  after,  to  allow  for  the  infancy  of  the 
next  taker,  who  by  reason  of  infancy  could  not  alienate  the 
estate.'-^  The  statute  of  10  &  11  Wm.  III.,  c.  IG,  having  pro- 
vided that  children  en  ventre  sa  mere,  born  after  their  father's 
death,  should  for  the  purposes  of  the  limitations  of  estates  be 
deemed  to  have  been  born  in  his  lifetime,  a  further  extension 
of  nine  or  ten  months  was  allowed  for  the  period  of  gesta- 
tion.^ The  next  step  was  to  allow  a  period  of  nine  months 
for  gestation  at  the  beginning  of  the  term,  as  the  life  in  being 
during  which  the  term  would  run  might  be  that  of  a  child  e?i 
ventre  sa  mere.^  Much  discussion  arose  upon  each  one  of 
these  steps. ^  For  instance,  the  term  of  twenty-one  years,  it 
was  said,  could  not  be  allowed  as  a  term  in  gross,  and  with- 
out reference  to  the  infancy  of  some  person  interested  in  the 
estate ;  this  question  was  not  settled  until  Cadell  v.  Palmer, 
in  the  House  of  Lords  in  1833,  when  it  was  finally  deter- 

1  Goring  v.  Bickerstaff,  PoUexf.  31;  1  Ch.  Cas.  4;  2  Freem.  163 
(1664)  ;  2  Harg.  Juiid.  Arg.  46  ;  Lloyd  v.  Carew,  Shower,  P.  C.  137 ;  Pr. 
Ch.  72. 

2  Taylor  v.  Biddal,  2  Madd.  289  ;  Freem.  243  ;  1  Eq.  Cas.  Ab.  188,  c.  11 ; 
F.  C.  R.  432;  Laddington  v.  Kime,  1  Raym.  203  ;  Gore  v.  Gore,  2  W.  Kel. 
204 ;  2  P.  Wms.  28 ;  2  Stra.  948 ;  Scattergood  v.  Edge,  12  Mod.  277 ; 
Duke  of  Norfolk's  Case,  3  Ch.  Cas.  32  ;  Ch.  R.  229 ;  2  Freem.  72  ;  Pollexf. 
223 ;  Massenburgh  v.  Ash,  1  Vera.  234 ;  Maddox  v.  Staine,  t.  Talb.  228 ; 
2  Harg.  Jurid.  Arg.  50. 

3  Stephens  v.  Stephens,  Cas.  t.  Talb.  228 ;  Forrest,  228 ;  Goodtitle  v. 
Woods,  Willes,  211  ;  7  T.  R.  103  (n.)  ;  Sheffield  v.  Orrery,  3  Atk.  282; 
Gulliver  v.  Wicket,  1  Wils.  185;  Bullock  v.  Stones,  2  Ves.  521 ;  Goodman 
V.  Goodright,  2  Burr.  873. 

4  Long  V.  Blackall,  7  T.  R.  100  ;  2  Harg.  Jurid.  Arg.  105 ;  6  Cru.  Dig. 
488. 

6  Davies  v.  Speed,  12  Mod.  39  ;  2  Salk.  675;  Holt,  731 ;  Bostock's  Case, 
Ley,  56;  Roe  w.  Tranmer,  2  Wils.  75;  Lloyd  v.  Carew,  Show.  P.  C.  137; 
Pr.  Ch.  72;  2  Harg.  Jurid.  Arg.  36;  Carwardine  u.  Carwardine,  1  Ed.  34; 
Blandford  v.  Thackerell,  2  Ves.  Jr.  241;  1  Sand.  Uses  &Tr.  198;  Thellus- 
son  V.  Woodford,  4  Ves.  337 ;  Routledge  v.  Dorrill,  2  Ves.  Jr.  357  ;  Keily 
V.  Fowler,  Wilmot,  306  ;  Beard  u.  Westcott,  5  Taunt.  393;  5  B.  &  A.  801; 
T.  &  R.  25;  Bengough  v.  Edridge,  1  Sim.  173,  271. 
544 


CHAP.    XIII.]  STATEMENT   OF   THE    RULE.  [§    380. 

mined,  that  twenty-one  years  might  be  allowed  as  a  term 
in  gross,  without  reference  to  the  infancy  of  any  person,  but 
that  the  period  of  nine  months  for  gestation  should  ho  allowed 
in  cases  only  where  the  gestation  had  commenced  ^  of  some 
persons  who,  if  born,  would  take  an  interest  in  the  estate. 
By  such  steps,  by  inipercei)tiljle  degrees,  and  after  two  cen- 
turies of  doubt  and  litigation,  and  unaided  by  legislation, 
the  judges  framed  and  completed  the  jreat  rule  against 
per2)etuities.^ 

§  380.  Thus  all  future  legal  estates  which  arise  by  way  of 
executory  devise,  conditional  limitation,  or  shifting  and 
springing  uses,  must  vest  within  a  life  or  lives  in  being  at 
the  death  of  the  testator,  and  twenty-one  years ;  and,  in  case 
the  person  in  whom  the  estate  or  interest  should  then  vest  is 
en  ventre  sa  mere,  nine  months  more  will  be  allowed ;  and  all 
estates  created  as  aforesaid,  and  so  limited  that  they  may  not 
vest  within  that  time,  arc  void.^  If  the  estates  are  created 
and  limited  by  deeds  inter  vivos,  the  lives  in  being  must  be 
those  persons  who  are  living  at  the  execution  of  the  deed, 
and  not  at  the  death  of  the  grantor  or  settlor.*     And  if  an 

1  Cadell  V.  Palmer,  7  Bligh  (x.  s.),  202 ;  10  Biug.  140;  1  CI.  &  Fin. 
372  ;  1  Jarm.  Wills,  222. 

2  Lewis  on  Perpetuity,  pp.  140-1G2;  1  Powell  on  Devisees  by  Jar. 
389,  n. 

8  Proprietors  of  Church  in  Brattle  Square  r.  Grant,  3  Gray,  149  :  Sears 
V.  Russell,  8  Gray,  8G;  1  Shep.  Touch.  120;  4  Kent,  Com.  128  and  notes; 

2  Fearne,  Cont.  Rem.  50;  Nightingale  v.  Burrell,  15  Pick.  Ill;  G  Cru. 
Dig.  tit.  38,  c.  17,  §  23;  Cadell  v.  Palmer,  1  CI.  &  Fin.  372,  423;  Bacon 
V.  Proctor,  T.  &  R.  31;  JIackworth  r.  llinxman,  2  Keen,  658;  Kcr  v. 
Duncannon,  1  Dr.  &  War.  509;  Com.,  &c.  v.  De  Clifford,  id.  245;  AVelsh 
V.  Foster,  12  Mass.  97;  Tilbury  v.  Barbut,  3  Atk.  G17;  Conklin  v.  Conklin, 

3  Sandf.  Ch.  64;  Tyte  v.  Willis,  Ca.  t.  Talb.  1;  Att.  Gen.  r.  Gill,  2  P. 
Wms.  369;  Nottingham  v.  Jennings,  1  id.  25;  Kampf  v.  Jones,  2  Keen, 
756;  Miller  v.  Macomb,  26  Wend.  229;  Tator  r.  Tutor,  4  Barb.  4:51 ;  King 
V.  Hardwicke,  2  Beav.  352;  Ferris  v.  Gibson,  4  Edw.  707;  Egerton  v. 
Brownlow,  4  II.  L.  Cas.  1,  160. 

*  Lewis  on  Perpetuity,  171, 172.     Mr.  Lewis  observes  an  inconsistency 

in  taking  lives  in  being  at  the  death  of  the  testator,  if  the  future  interest 

is  created  by  will,  and  lives  in  being  at  the  date  or  execution  of  the  deed, 

if  such  interests  are  created  by  deed.     But  it  should  be  remembered  that 

VOL    I.  —  ."35  545 


§  380.]  PERPETUITIES   AND    ACCUMULATIONS.       [CIIAP.    XIII. 

absolute  term  is  taken,  and  no  anterior  term  for  a  life  in 
being  is  referred  to,  such  absolute  term  cannot  be  longer  than 
twenty-one  years  ;^  but  a  term  of  any  number  of  years  may 
he  taken,  provided  the  term  is  so  connected  with  some  life  or 
lives  in  being  that  the  interest  must  vest  in  some  person  liv- 
ing at  the  death  of  the  testator  and  at  the  time  of  the  vest- 
ing. ^  So  estates  limited  to  take  effect  after  an  indefinite 
failure  of  issue  of  a  living  or  deceased  person  are  void,  for 
the  reason  that  the  issue  of  such  persons  may  not  fail  until 
after  the  term  of  a  life  or  lives  in  being  and  twenty-one 
years  has  expired.  ^  (a)     But  a  limitation  over  in  case   the 

a  ■svill  speaks  as  at  the  death  of  the  testator,  while  a  deed  speaks  as  at  the 
time  of  its  execution,  so  that  there  is  no  inconsistency  in  principle.  See 
Tregonwell  v.  Sydenham,  3  Dow,  194;  2  Jar.  on  "Wills,  257  ;  Ed.  1861. 

1  Crooks  V.  De  Vandes,  9  Ves.  197;  Palmer  v.  Holford,  4  Russ.  403; 
Speakman  v.  Speakmau,  8  Hare,  180. 

2  Lachlan  v.  Reynolds,  9  Hare,  796. 

3  Randolph  v.  Wendel,  4  Sneed,  646  ;  Van  Vechten  v.  Pearson,  5  Paige, 
512;  Van  Vechten  v.  Van  Vechten,  8  id.  104  ;  Hone  v.  Van  Schaick,  20 
Wend.  564  ;  Watkins  v.  Quarles,  23  Ark.  179  ;  Campbell  v.  Harding,  2 
Rus.  &  My.  390;  Condy  v.  Campbell,  2  CI.  &  Fin.  421,  427;  Harrison  v. 
Harrison,  36  N.  Y.  543;  Allen  v.  Henderson,  49  Penn.  St.  233;  Fisher 
V.  Webster,  L.  R.  14  Eq.  287;  Newill  v.  Newill,  L.  R.  7  Ch.  253;  Roe 
V.  Jeffery,  1  T.  R.  589  ;  Hawley  v.  James,  5  Paige,  318;  16  Wend.  61  ; 
Miller  v.  JMacomb,  2  id.  229  ;  9  Paige,  265  ;  Lorillard  v.  Coster,  5  id.  172 ; 
Boehm  v.  Clark,  9  Ves.  580 ;  Black  v.  McAulay,  5  Jones,  L.  375  ;  Jackson 
V.  Billinger,  18  Johns.  368;  Fisk  v.  Keen,  35  Maine,  349;  Bramlet  i^. 
Bates,  1  Sneed,  554;  Jordan  v.  Roach,  32  Miss.  481  ;  Grayw.  Bridgforth, 
33  Miss.  312 ;  Tongue  v.  Kutwell,  13  Md.  415  ;  Jones  v.  Miller,  13  Ind. 
337;  Chism  v.  Williams,  29  Mo.  288;  Dodd  v.  Wake,  8  Sim.  615;  Traf- 
ford  V.  Boehm,  3  Atk.  440;  Ellicombe  v.  Gompertz,  3  Myl.  &  Cr.  127; 
Murray  v.  Addenbrook,  4  Russ.  407;  Hayes  v.  Hayes,  id.  311;  Bell  v. 
Phyn,  7  Ves.  453;  Thackeray  v.  Sampson,  2  S.  &  S.  214;  Cross  v.  Cross, 
7  Sim.  201;  Bradshaw  v.  Skilbeck,  2  Bing.  N.  C.  182;  Budd  v.  State,  22 
Md.  48;  Johnson  v.  Currin,  10  Penn.  St.  498;  Bedford's  App.,  40  id.  18; 
Deihl  V.  King,  6  Serg.  &  R.  29;  Eichelberger  v.  Barnitz,  17  Serg.  &  R.  293; 
Rice  V.  Satterwhite,  1  Dev.  &  B.  Eq.  69;  Postell  v.  Postell,  Bail.  Ch.  390; 
Conklin  v.  Conklin,  3  Sandf.  Ch.  64;  Brashear  v.  Marcy,  3  J.  J.  Marsh. 
89;  Allen  v.  Parkam,  5  Munf.  457;  Mazyck  v.  Vanderhost,  Bail.  Ch.  48; 
Adams  v.  Chaplin,  1  Hill,  Eq.  265;  Lanesborough  v.  Fox,  Ca.  t.  Talb. 

(a)  Hutchinson  v.    Tottenham,  [1898]  1  Ir.  403;  hi   re  Gage,  [1898] 
1  Ch.  498. 
546 


CHAP.  XII r.]   RULE  AS  TO  EQUITABLE  ESTATES.        [§  381. 

heirs  of  A. 's  body  living  at  her  death  die  before  reaching  the 
age  of  twenty-one,  is  not  void  if  A.  leave  no  heirs  of  her 
body,  but  it  takes  effect  at  her  death.  ^ 

§  381,  It  will  be  observed,  that,  in  determining  whether  a 
particular  devise  is  contrary  to  the  rule  against  perpetuities, 
the  inquiry  is  not  whether  the  contingency  upon  which  the 
estate  is  to  vest  actually  occurs  within  the  time  limited  by 
the  rule,  but  whether  it  is  possible  that  the  event  may  not 
happen  within  the  time.  If  it  is  possible  that  the  event  upon 
which  an  executory  devise  or  shifting  or  springing  use  is  to 
vest  in  some  person  may  not  happen  within  the  time,  the 
executory  estate  is  void,  although  in  fact  the  event  actually 
happens  within  the  time.^  And  it  must  further  be  observed, 
that,  if  the  estate  is  to  vest  in  some  persons  within  the  time 
limited,  it  will  not  be  obnoxious  to  the  rule  against  perpetui- 
ties, even  if  such  person  may  not  be  entitled  to  the  actual 
enjoyment  of  the  property ;  that  is,  the  rule  as  to  perpetuities 
deals  with  the  vestirig  of  the  title,  and  not  with  the  actual 
reception  of  the  profits  of  an  estate.^  A  gift  may  be  to  unborn 
children  for  life  and  then  to  an  ascertained  person,  if  the 
vesting/  of  the  estate  in  the  latter  is  not  postponed  too  long. 
The  person  who  is  to  take  must  become  certain  within  the 
period,  the  right  of  possession  may  be  postponed  longer. 
Moreover,  if  a  certain  estate  is  to  vest  within  the  time  on 
a  contingency  which  actually  occurs,  the  devise  is  not  affected 
by  the  fact  that  the  estate  was  limited  to  take  effect  at  an- 

2G2;  Bennett  v.  Lowe,  5  Moor.  &  P.  485;  Smith  v.  Dunwoody,  19  Ga. 
237;  McRee  v.  Means,  34  Ala.  378;  Powell  v.  Brandon,  24  Miss.  343; 
Armstrong  v.  Armstrong,  14  B.  Mon.  333.  As  to  the  legislation  in  the 
various  States  upon  the  failure  of  issue,  see  2  Washburn,  Real  Prop.  683 
(3d  ed.). 

1  Egbert  v.  Schultz,  29  Ind.  242. 

2  Post,  §  393  ;  Langdon  v.  Simson,  12  Ves.  295 ;  O'Xeill  v.  Lucas,  2 
Keen,  313  ;  IMoore  v.  Moore,  6  Jones,  Eq.  132;  Welch  v.  Foster,  12  Mass. 
97;  Craig  r.  Hone,  2  Edw.  Ch,  554;  Robinson  v.  Bishop,  23  Ark.  378; 
Sears  v.  Putnam,  102  Mass.  5. 

*  Loring  c.  Blake,  98  Mass.  253;  Murray  v.  Addenbrook,  4  Russ.  407; 
Phipps  V.  Kelynge,  2  V.  &  B.  57,  n.  (c)  ;  Curtis  v.  Lukin,  5  Beav.  147; 
Otis  V.  McLellan,  13  Allen,  339  ;  Yard's  App.,  64  Penn.  St.  95. 

547 


§  382.] 


PERPETUITIES  AND   ACCUMULATIONS.      [cHAP.   XIII. 


other  time  in  the  event  of  an  alternate  contingency  which 
may  be  too  remote.^  If  two  constructions  may  be  put  upon 
a  will,  one  of  which  will  offend  against  the  rule  against  per- 
petuities, and  the  other  not,  the  construction  which  will  not 
offend  against  the  rule  will  be  adopted,  if  in  other  respects  it 
can  be  sustained. ^  And  so  a  will  speaks,  upon  the  subject 
of  remoteness,  from  the  time  of  the  last  codicil,  and  not  from 
the  date  of  the  original  will.^ 

§  382.  The  same  rule  applies  with  equal  force  in  law  and 
equity,  and  trusts  and  beneficial  or  equitable  estates  are 
subject  to  the  same  restrictions.*  (a)     A  perpetuity  will  no 

1  Seaver  v.  Fitzgerald,  141  Mass.  401. 

2  Martelli  v.  HoUoway,  L.  R.  5  H.  L.  532. 
^  Hosea  v.  Jacobs,  98  Mass.  65. 

4  Duke  of  Norfolk's  Case,  3  Ch.  Cas.  20  ;  2  Ch.  R.  229 ;  2  Freem.  72  ; 
PoUexf .  293 ;  Massenburgh  v.  Ash,  1  Vern.  254  ;  Schutter  v.  Smith,  41 
N.  Y.  329 ;  Knox  v.  Joues,  47  N.  Y.  397;  Burrill  v.  Boardman,  43  N.  Y. 
254.  jEquitas  sequitur  legem,  but  courts  of  equity  Lave  rather  led  the  law 
courts  in  fashioning  the  rules  against  perpetuities. 


(a)  See  Re  Whitten,  62  L.  T. 
391 ;  Patching  v.  Barnett,  51  L.  J. 
Ch.  74  ;  In  re  Mervin,  [1891]  3  Ch. 
197;  In  re  Benee,  id.  242;  In  re 
Dawson,  39  Ch.  D.  155 ;  In  re 
Frost,  43  Ch.  D.  24G ;  In  re  Low- 
man,  [1895]  2  Ch.  348 ;  Hartson  v. 
Elden,  50  N.  J.  Eq.  522;  Post  v. 
Rohrbach,  142  111.  GOO;  Hartw.  Sey- 
mour, 147111.  598;  Bigelow  v.  Cady, 
171  111.  229 ;  In  re  Walkerly,  108 
Cal.  627 ;  Chilcott  v.  Hart,  23  Col. 
40;  Claflin  v.  Claflin,  149  Mass.  19; 
TTinsor  v.  Mills,  157  Mass.  362; 
Butterfield  r.  Reed,  160  Mass.  361 ; 
Edgerly  v.  Barker,  66  N.  H.  434 ;  9 
Harv.  L.  Rev.  242  ;  6  id.  195,  406  ; 
8  id.  211 ;  Landers  v.  Dell,  61  Conn. 
189;  Tarrant  v.  Backus,  63  Conn. 
277;  Security  Co.  v.  Snow,  70 
Conn.  288;  Tingier  v.  Chamberlin 
(Conn.),  42  Atl.  718;  Cooper's 
548 


Estate,  150  Penn.  St.  576;  Law- 
rence's Estate,  136  id.  354  ;  Dulany 
V.  Middleton,  72  Md.  67 ;  Dana  v. 
Murray,  122  N.  Y.  604 ;  Fowler  i'. 
Ingersoll,  127  N.  Y.  472;  Under- 
wood V.  Curtis,  id.  523 ;  Schermer- 
horn  V.  Cotting,  131  N.  Y.  48; 
Murphy  v.  Whitney,  140  N.  Y.  541; 
Bird  V.  Pickford,  141  N.  Y.  18.  The 
true  object  of  the  rule  against  per- 
petuities was  not  to  remove  restric- 
tions on  the  immediate  conveyance 
of  property,  but  to  prevent  the  crea- 
tion of  interests  on  remote  contin- 
gencies. Gray  on  Perpetuities, 
§§  269,  278;  but  see  8  Harv.  L. 
Rev.  212.  A  gift  to  one  then 
living,  if  still  alive  at  the  end  of 
forty-nine  years,  and,  if  then  de- 
ceased, to  her  issue,  if  she  leaves 
issue,  is  not  void  for  remoteness. 
In   re  Daveron,  [1893]  3  Ch.  421. 


CHAP.    XIII.]       RULE   AS   TO   EQUITABLE   ESTATES.  [§  383. 

more  be  tolerated  when  it  is  covered  by  a  trust,  than  when  it 
displays  itself  undisguised  iu  the  settlement  of  a  legal 
estate.^  "If,"  as  Lord  Guilford  said,  "inequity  you  could 
come  nearer  to  a  perpetuity  than  the  common  law  admits,  all 
men,  being  desirous  to  continue  their  estates  iu  their  fami- 
lies, would  settle  their  estates  by  way  of  trust,  which  might 
make  well  for  the  jurisdiction  of  chancery,  but  would  be 
destructive  to  the  commonwealth." 

§  383.  Therefore,  the  creation  of  a  trust  or  equital)le  in- 
terest, which  may  not  vest  in  the  object  of  the  trust  within 
the  time  limited  by  law  for  the  vesting  of  legal  estates,  will 
be  nugatory. 2  Thus  where  a  testator  devised  his  real  estate 
to  trustees,  in  trust  to  apply  the  rents  to  the  support  of  his 
wife,  and  his  present  and  future  grandchildren,  during  the 
life  of  the  wife,  and  on  her  death  to  convey  the  estates  to  all 
his  present  and  future  grandchildren,  as  they  respectively 
attained  the  ago  of  twenty-five  years,  to  hold  to  them  and 
their  heirs  as  tenants  in  common,  it  was  held  that  the  trust 
to  convey  was  void,  for  the  reason  that  some  of  the  grand- 
children might  not  become  twenty-five  years  old  until  after 
the  expiration  of  the  life  of  the  tenant  for  life,  and  twenty- 
one  years  in  addition. ^     So  a  testator  cannot  authorize  his 

1  Norfolk's  Case,  1  Yern.  164  ;  Humberston  v.  Humberston,  1  P.  Wms. 
332;  Parfitt  v.  Ilember,  L.  R.  4  Eq.  443;  Sears  v.  Putnam,  102  Mass.  5; 
Lovering  v.  Worthington,  lOG  Mass.  86. 

2  Bailey  v.  BaUey,  28  Hun,  6U3. 

*  Blagrave  v.  Hancock,  16  Sim.  374;   Dodd  v.  Wake,  8  Sim.  615; 

No  perpetuity  arises  upon  a  condi-  revocable  at  any  time.     Pulitzer  r. 

tion  subsequent.     In  re  Stickney's  Livingston,    89   Maine,   359.      The 

Will,  85  Md.  79, 103.     A  limitation  rule   is  determined,  as  to   personal 

which  may  be  too  remote  does  not  property,  by  the  law  of  the  domicil. 

invalidate    another    limitation    de-  Cross  v.  U.  S.  Trust  Co  ,  131  X.  Y. 

pending   upon  an   alternative   con-  330.      Thus,    the    provisions   of    a 

tingency  which  is  not  obnoxious  to  foreign  will  may  be  valid  in  a  State 

the  rule.     Perkins  v.  Fisher,  59  Fed.  where    the    same    legatees,    taking 

Rep.    801.     The   rule   against  per-  there  under  the  will,  and   citizens 

petuities  does  not  relate  to  vested  of  that  State,  could  not  take  under 

estates    or    interests,    nor    does    it  a  domestic  will.  Dammert  r.  Osborn, 

apply  to  trusts  or  powers  that  are  140  X.  Y.  30;  141  id.  564. 

549 


§  384.]  PERPETUITIES   AND   ACCUMULATIONS.      [CIIAP.   XIII. 

trustees  to  limit  an  estate  beyond  the  limits  of  the  rule  against 
perpetuities;  but  the  persons  appointed  to  take  must  be 
capable  of  taking  directly  under  the  will.^  So  where  a  tes- 
tator devised  land  to  a  corporation  in  trust  to  convey  the 
same  to  A.  for  life,  with  remainder  to  his  oldest  son  for  life, 
remainder  to  the  son's  oldest  son  for  life,  and  so  on  in  an 
endless  series,  and  in  default  of  issue  of  A.,  then  to  B.  for 
life,  and  remainder  to  his  oldest  son  for  life,  and  so  on  in 
the  same  manner  as  to  the  sons  of  A.,  it  was  held  to  be  void 
and  vain  as  a  perpetuity.  ^  So  if  any  directions  are  given 
which,  if  complied  with,  must  enforce  a  perpetuity,  they 
will  be  void;  as  when  a  testator  gave  land  to  a  college,  and 
directed  that  the  same  should  be  leased  forever  to  his  wife's 
relations  at  two-thirds  its  value,  it  was  held  to  be  a  void 
direction,  as  tending  to  a  perpetuity.  ^ 

§  384.  In  private  trusts  the  beneficial  interest  is  vested 
absolutely  in  some  individual  or  individuals  who  are,  or 
within  a  certain  time  may  be,  definitely  ascertained;  and  to 
whom,  therefore,  collectively,  unless  under  some  disability, 
it  is,  or  within  the  allowed  limit  will  be,  competent  to 
control,  modify,  or  end  the  trust.  Private  trusts  of  this 
kind  cannot  be  extended  beyond  the  legal  limitations  of 
a  perpetuity,  as  before  stated.  Nor  can  a  settlor  give 
his  trustees  a  power  to  appoint  the  property  subject  to  a 
trust,  to  new  trusts  to  arise  at  or  upon  the  termination 
of  the  trusts  created  by  himself.  But  a  trust  created 
for  charitable  or  public  purposes  is  not  subject  to  similar 


Broughton  v.  James,  1  Coll.  26;  2  H.  L  Cas.  406;  Walker  v.  Mower, 
16  Beav.  365;  Leake  v.  Robinson,  2  Mer.  363;  Sears  v.  Russell,  8 
Gray,  86. 

1  Marlborough  v.  Godolphin,  1  Ed.  404  ;  Robinson  v.  Hardcastle,  2  T. 
R.  241,  380,  781;  Fonda  v.  Fenfield,  56  Barb.  503  ;  Barnum  v.  Barnura, 
26  Md.  119.  But  a  power  to  change  trustees  does  not  come  within  the 
principle.     Clark  v.  Piatt,  30  Conn.  282. 

2  Humberston  v.  Humberston,  1  P.  Wms.  332  ;  Pai-fitt  v.  Hember,  L. 
R.  4  Eq.  442 ;  Floyer  v.  Bankes,  L.  R.  8  Eq.  115. 

8  Att.  Gen.  v.  Greenhill,  9  Jur.  (n.  s.)  1307. 

550 


CHAP.    XIII.]      TRUST    APPLIKD    CONTRARY   TO    RULE.  [§  3S5. 

limitations,    but    it  may  continue  fur  a  jtermancnt  or  in- 
definite   tiinc.'((;) 

§  385.  A  trust  to  raise  a  sum  of  money  out  of  an  estate 
will  be  good  if  properly  limited,  although  the  trust  itself  upon 
which  the  money  is  limited  after  it  i.s  raised  is  void  as  being 
too  remote.  In  such  case,  the  heir  will  take  the  money  as 
personal  estate.^  Contingent  remainders  of  trust  estates  do 
not  follow  the  strict  rules  of  legal  estates,  but  they  arc  made 
to  wait  upon  the  contingency.  In  legal  estates,  the  contin- 
gency must  haj)pen  bcfoi-e  the  time,  or  the  estate  is  gone. 
In  the  contingent  remainders  of  equitable  estates  here  spoken 
of,  if  the  contingency  may  happen  within  the  time,  the  estate 
is  made  to  wait:  if  it  happens,  the  estate  vests;  if  it  does 
not  happen,  the  estate  fails.  ^ 

1  Christ's  Hospital  v.  Granger,  1  Mac.  &  G.  460;  Att.  Gen.  v.  Foster, 
10  Ves.  344;  Att.  Gen.  v.  Newcombe,  14  Ves.  1  ;  Fearon  v.  Webb.  id.  19; 
Walker  v.  Richardson,  2  M.  &  W.  802  ;  Att.  Gen.  v.  Aspinal,  2  Alyl.  &  Cr. 
622 ;  Att.  Gen.  v.  Ileelis,  2  S.  &  S.  76 ;  Att.  Gen.  v.  Shrewsbury,  6  Beav. 
224;  Odell  v.  Odell,  10  Allen,  1;  Ga.ss  v.  Wilhite,  2  Dana,  183;*^  Griffin  v. 
Graham,  1  Hawks,  131 ;  Miller  v.  Chittenden,  2  Iowa,  3G2;  Philadelphia 
r.  Girard,  45  Penn.  St.  26  ;  Yard's  App.,  64  id.  05.  The  rule  is  held 
differently  under  the  legislation  of  the  State  of  New  York.  Levy  v.  Levy, 
33  N.  Y.  130  ;  Bascorabe  v.  Albertson,  34  N.  Y.  598;  Beekman  v.  Bonsor, 
23  N.  Y.  308 ;  Yard's  App.,  64  Penn.  St.  05,  and  see  White  v.  Hale,  2 
Cold.  77. 

2  Ellis  V.  Lynch,  8  Bo-sw.  465;  Burnly  v.  Evelyn,  16  Sim.  290;  Tre- 
gonwell  c.  Sydenham,  3  Dow.  194.  But  see  Parson  r.  Snook,  40  Barb. 
144. 

8  Mogg  V.  Mogg,  1  ]\Ier.  654  ;  Monypenny  v.  Deering,  7  Hare,  568 ; 

(a)  The  rule  against  perpetuities  re  Tyler,  [1891]  3   Ch.  252;   In  re 

"does  not  apply  to  a  gift  to  a  charity,  Bowen,   [1893]    2   Ch.   491;    In  re 

with  no  intervening  gift  to  or  for  Nottage,  [1805]  2  Ch.  649;  White 

the  benefit  of   a  private  person  or  v.    Keller,  68    F.  R.  796;   Mills  r. 

corporation;    or    to    a    contingent  Davison,  54  N.  J.  Eq.  659;  Webster 

limitation  over  from  oue  charity  to  v.  Alorri.?,    66  Wis.  366;    Alden  r. 

another.     But  it  does   apply  to   a  St.   Peter's    Parish,    158  III.    631 ; 

grant  or  devise  to  a  private  person,  Garrison  v.  Little,  75  111.  App.  402. 

although  limited  over  after  an  ira-  The  exception  in  favor  of  charities 

mediate   gift  to   a  charity."      ]Mr.  relates  only  to  gifts,  not  to  sales  for 

Justice  Gray,  in  Hopkins  c.  Grim-  a  valuable  consideration.     Holmes 

shaw,  165  U.   S.  342,  355.     See  In  v.  Trustees  (N.  J.  Eq.).  41  Atl.  102. 

551 


§  386.]  PERPETUITIES   AND   ACCUMULATIONS.      [CHAP.    XIII. 

§  38G.  A  legal  estate  in  fee  cannot  be  conveyed  to  a  person 
"with  a  provision  that  it  shall  not  be  alienated,  or  that  it 
shall  not  be  subject  to  the  claims  of  creditors ;  and  so  trusts 
cannot  in  general  ^  be  created  with  a  proviso,  that  the  equi- 
table estate,  or  interest  of  the  cestui  que  trust,  shall  not  be 
alienated  or  charged  with  his  debts. ^  (a)  If  it  is  ascertained 
that  an  interest  is  vested  in  the  cestui  que  trust,  the  mode  in 
which  or  the  time  when  he  is  to  reap  the  benefit  is  immate- 
rial. The  law  does  not  allow  property,  whether  legal  or 
equitable,    to   be    fettered   by    restraints    upon    alienation. 

Alexanders.  Alexander,  16  C.  B.  59;  Hopkins  v.  Hopkins,  1  Atk.  581; 
Festing  v.  Allen,  12  M.  &  W.  279  ;  Sayer's  Trusts,  L.  R.  6  Eq.  319;  Litt 
V.  Randall,  3  Sm.  &  G.  83  ;  Hodson  v.  Ball,  14  Sim.  558  ;  Jee  v.  Audley, 
1  Cox,  324;  Church  in  Brattle  Square  v.  Grant,  3  Gray,  142  ;  Arnold  v. 
Congreve,  1  R.  &  M.  209  ;  Wilson  v.  Wilson,  4  Jur.  (n.  s.)  1076  ;  28  L.  J. 
(x.  s.)  95  ;  Storrs  v.  Benbow,  3  De  G.,  M.  &  G.  390;  Cattlin  v.  Brown,  11 
Hare,  372;  Griffith  v.  Pownall,  13  Sim.  393;  Merlin  v.  Blagrave,  25  Beav. 
125;  Greenwood  v.  Roberts,  15  Beav.  92  ;  Dungannon  v.  Smith,  12  CI.  & 
Fin.  546 ;  Seaman  v.  Wood,  22  Beav.  591;  Vanderplank  v.  King,  3  Hare, 
1;  Webster  v.  Boddington,  26  Beav.  128;  Curtis  v.  Lukin,  5  Beav.  147; 
Hardenburg  v.  Blair,  30  N.  J.  Eq.  42 ;  Newark  Meth.  Episc.  Ch.  v.  Clark, 
41  Mich.  730. 

1  This  is  the  rule  in  England  and  in  some  of  our  States;  but  the  con- 
trary is  strongly  held  iu  a  Massachusetts  case  of  the  year  1882.  See 
§  827  a. 

2  Snowdon  v.  Dales,  6  Sim.  .524;  Green  v.  Spicer,  1  R.  &  M.  395; 
Graves  v.  Dolphin,  1  Sim.  66  ;  Brandon  i:  Robinson,  18  Ves.  429;  Ware  v. 
Cann,  10  B,  &  Cr.  433  ;  Bradley  v.  Peixoto,  3  Ves.  324 ;  Hood  v.  Oglander, 
34  Beav.  513 ;  Bird  v.  Johnson,  IS  Jur.  976  ;  Blackstone  Bank  v.  Davis, 
21  Pick.  43 ;  Etches  v.  Etches,  3  Drew.  441 ;  Sparhawk  v.  Cloou,  125  :\Iass. 
262  ;  Daniels  v.  Eldredge,  id.  350. 

(a)  Todd  V.  Sawyer,  147  Mass.  mortgage  to  secure  corporate  bonds. 

570;  Winsori'.  Mills,  157  Mass.  362;  Atlantic  Trust  Co.  v.  Woodbridge, 

Gushing    v.   Spaulding,    164    Mass.  &c.  Co.,  86  F.  R.  976.     The  rule  is 

287.     A  gift  to  a  certain  bishop  and  violated  by  a  devise  which  creates 

his  successors  does  not  violate  the  either  an  active  trust  or  a  power  in 

rule  against  perpetuities  when  there  trust  whenever  the  right  to  alienate 

is    no    restraint    upon    alienation,  is  suspended  beyond  the  term  al- 

Lamb  v.   Lynch  (Xeb.),  76  N.  W.  lowed  by  it.     Cottman  v.  Grace,  112 

428.     So  of  a  mining  lease  for  999  N.  Y.  299 ;  Claflin  v.  Claflin,   149 

years.      Henderson  i-.  Virden  Coal  Mass.    19;    Staples    v.    Hawes,   53 

Co.,  78  Til.  App.   437.     And  of  a  N.  Y.  S.  860. 
552 


CHAP.    XIII.]  RESTRAINTS   UPON   ALIENATION.  [§  386  a. 

Therefore,  when  an  equitable  interest  is  once  vested  in  the 
cestui  que  trust,  he  may  dispose  of  it,  or  it  may  j)a.ss  to  his 
assignees  by  operation  of  law,  if  he  becomes  a  bankrupt. 
Thus  a  trust  for  a  person's  support,'  or  to  pay  the  interest  to 
a  person  for  life,  as  the  trustees  may  think  proper,^  or  when 
it  shall  become  payable,'  or  in  such  sums  or  portions,  and  at 
such  times  and  in  such  manner  as  the  trustees  think  best,* 
may  be  exercised  according  to  the  discretion  of  the  trus- 
tees; (a)  but  the  bankrujjtcy  of  the  cestui  que  trust  puts  an 
end  to  the  discretion  of  the  trustees,  and  vests  the  whole  in- 
terest in  the  assignees;  and  this  is  so,  even  where  the  trus- 
tees were  directed  to  pay  as  they  should  think  proper,  and  at 
their  will  and  pleasure  and  not  otherwise,  so  that  the  cestui 
que  trust  should  have  no  right,  claim,  or  demand,  other  than 
the  trustees  should  think  proper.  The  court  thought,  in 
Snowdon  v.  Dales,  that,  taking  the  whole  instrument  to- 
gether, the  cestui  que  trust  had  a  vested  interest,  that  these 
directions  applied  only  to  the  manner  of  enjoyment,  and  that 
the  equitable  interest  vested  in  the  assignees  at  his  bank- 
ruptcy.^ The  test  is.  Would  executors  of  the  cestui  que  trust 
have  a  right  to  call  for  any  arrears?  if  so,  the  assignees  would 
have  the  right  to  call  for  the  future  income  or  interest.^ 

§  386  a.  This  doctrine,  that  the  incidents  of  a  legal  title 
attach  to  an  absolute  equitable  interest,  and  that  an  equitable 
estate  for  life  in  any  other  than  a  married  woman  carries 
with  it  the  power  of  alienation  by  the  cestui  que  trust,  and 
may  be  taken  for  the  payment  of  his  debts,  and  that  no  pro- 
vision which  does  not  operate  to  terminate  his  interest  can 
protect  it  from  the  claims  of  creditors,  is  the  well-settled  law 
of  England,  and  has  been  approved  and  applied  in  many  dicta 

^  Younghusband  v.  Gi.sborne,  1  Coll.  400. 

2  Green  r.  Spicer,  1  U.  &  .M.  305. 

"  Graves  v.  Dolphin,  1  Sim.  66. 

4  Piercy  r.  Roberts,  1  Myl.  &  K.  4. 

6  Snowdon  v.  Dales,  6  Sim.  524. 

8  Re  Sanderson's  Trust,  3  K.  &  J.  497. 

(a)  See  infra,  §  827  a. 

553 


§  386  a.]  PERPETUITIES   AXD   ACCUMULATIONS.       [CIIAP.    XIII. 

and  decisions  in  the  United  States.^  But  it  has  not  been 
allowed  to  pass  unchallenged,  and  there  is  eminent  authority 
in  the  Federal  and  the  State  courts  for  the  proposition,  that 
the  power  of  alienation  is  not  a  necessary  incident  to  an 
equitable  estate  for  life,  and  that  the  owner  of  property  may, 
in  the  free  exercise  of  his  bounty,  so  dispose  of  it  as  to  secure 
its  enjoyment  to  the  objects  of  his  bounty  without  making 
it  alienable  by  them  or  liable  for  their  debts,  and  that  this 
intention,  clearly  expressed  by  the  founder  of  a  trust,  must 
be  carried  out  by  the  courts.'-^ (a)     In  those  States,  however, 

1  Ante,  §  386,  cases  cited:  Tillinghast  r.  Bradford,  5  R.  I.  205  ;  Smith 
V.  Moore,  37  Ala.  327  ;  Hallett  v.  Thompson,  5  Paige,  583 ;  Bramhall  v. 
Ferris,  14  N.  Y.  41,  44;  Williams  v.  Thorn,  70  X.  Y.  270;  Nichols  v. 
Levy,  5  Wall.  433,  441;  Sellick  v.  Mason,  2  Barb.  Ch.  79;  Mclllvaine 
V.  Smith,  42  Mo.  4.5;  Heath  v.  Bishop,  4  Rich.  Eq.  40;  Rider  v.  Mason, 
4  Sandf.  Ch.  3.32;  Easterly  v.  Keney,  36  Conn.  18;  Xickell  v.  Ilandley, 
10  Grat.  336 ;  Girard  Life  Ins.  Co.  v.  Chambers,  46  Pa.  St.  485 ;  Dick  v. 
Pitchford,  1  Dev.  &  B.  Eq.  480;  Mebane  v.  Mebane,  4  Ired.  Eq.  131 ;  Pace 
V.  Pace,  7  N.  C,  119.  And  a  trust  made  void  by  an  illegal  suspension  of 
the  power  of  alienation  is  not  made  valid  by  a  power  of  sale  in  the  trus- 
tee, the  proceeds  remaining  subject  to  the  trust.  Garvey  v.  McDavitt,  11 
Hun  (X.  Y.),  457;  Brewer  r.  Brewer,  id.  147;  but  see  Braman  v.  Stiles, 
4  Pick.  400. 

2  Nichols  V.  Eaton,  91  U.  S.  716 ;  cited  and  approved  in  Hyde  v.  Woods, 
94  U.  S.  523 ;  Ashurst  i^.  Given,  5  Watts  &  S.  323 ;  Holdship  v.  Patterson, 
7  Watts,  547 ;  Brown  v.  Williamson,  36  Penn.  St.  338 ,  Still  v.  Spear,  45 
id.  168;  Shankland's  App.,  47  id.  113;  Pope  v.  Elliott,  8  B.  Mon.  56; 
White  V.  White,  30  Yt.  338 ;  Campbell  v.  Foster,  35  N.  Y.  361.  The 
argument  in  these  cases  proceeds  upon  the  ground,  that  the  doctrine  of 
the  English  cases  must  rest  upon  the  rights  of  creditors  ;  and  it  is  claimed 
that  the  policy  of  the  States  of  this  Union  has  not  been  carried  so  far  in 
furtherance  of  creditors'  rights,  that  creditors  can  have  no  claim  upon 
property  which  belonged  to  the  founder  of  the  trust,  and  of  which  he  had 
the  full  and  entire  right  of  disposing  as  he  chose,  for  the  benefit  of  the 
cestui  que  trust,  w'ho  parts  with  nothing  in  return,  and  that  the  intent  of 
the  donor  clearly  expressed  in  disposing  of  his  property  for  a  lawful  pur- 
pose must  be  carried  out;  and  the  laws  enacted  in  nearly  or  quite  every 
State,  exempting  property  of  greater  or  less  amounts  in  value  from  liabil- 
ity for  the  payment  of  debts,  are  relied  on  as  showing  the  policy  of  these 
States.  It  is  conceded  that  there  are,  however,  limitations,  which  public 
policy  or  general  statutes  impose  upon  dispositions  of  property,  such  as 

(o)  See  infra,  §  827  a,  and  note  (a). 

554 


CIIAr.    XIII.]  RESTRAINTS   UPON   ALIENATION.  [§  386  a. 

where  the  doctrine  of  the  English  cases  has  been  adopted, 
these  distinctions  and  observations  must  be  borne  in  mind. 
If  the  absolute  equitable  interest  is  in  the  cestui  que  trust,  it 
goes  to  his  assignees  or  creditors  in  case  of  insolvency.  And 
it  may  be  said  that,  if  an  absolute  equitable  interest  is  given 
to  a  cestui  que  trust,  no  restraints  upon  alienation  can  be  im- 
posed. But  a  trust  may  be  so  created  that  no  interest  vests 
in  the  cestui  que  trust ;  consequently,  such  interest  cannot  be 
alienated,  as  where  property  is  given  to  trustees  to  be  apjilied 
in  their  discretion  to  the  use  of  a  third  person,  no  interest 
goes  to  the  third  person  until  the  trustees  have  exercised 
this  discretion.  So  if  property  is  given  to  trustees  to  be 
apjilicd  by  them  to  the  support  of  the  cestui  que  trust  and  his 
family,  or  to  be  paid  over  to  the  cestui  que  trust  for  the  sup- 
port of  himself  and  the  education  and  maintenance  of  his 
children.     In  short,  if  a  trust  is  created  for  a  specific  pur- 

those  designed  to  prevent  perpetuities  and  accumulations  in  corporations, 
&c.  But  the  owner  of  property  is  governed  by  the  rules  of  law,  both  in 
the  use  and  enjoyment  and  in  disposing  of  his  property;  and  the  doctrine 
in  question  seems  to  be  founded  upon  the  rule  that  title  to  property 
includes  the  right  of  alienation  and  liability  for  debts,  and  it  seems 
impossible  that  there  can  be  any  reason  in  public  policy,  under  a  free 
government,  having  for  its  object  the  growth  and  development  of  a  com- 
mercial people;  for  such  a  limitation  of  the  incidents  of  title  to  property 
and  the  argument  from  the  exemption  laws  would  seem  to  be  well  an- 
swered by  the  maxim,  expressio  unius  est  exclusio  alterius.  Many  of  the 
American  cases,  where  the  English  doctrine  has  been  doubted  or  denied, 
seem  to  have  been  cases  of  trusts  for  the  support  and  maintenance  of  the 
cestui  que  trust:  and  a  clearly  manifested  intention  on  the  part  of  the 
donor  that  the  income  of  the  fund  shall  be  devoted  to  that  purpose  may 
impose  a  duty  and  give  a  consequent  power  in  the  trustee,  either  in  his 
discretion  or  under  the  direction  of  the  court,  to  pay  over  the  income  only 
in  such  manner  as  shall  insure  its  application  in  accordance  with  the  in- 
tent of  the  donor  and  protect  it  from  the  claims  of  creditors  and  the  improvi- 
dence of  the  beneficiary,  with  substantially  the  same  result  upon  the 
absolute  character  of  the  estate  of  the  cestui  que  trust  as  if  the  instrument 
declaring  the  trust  had  expressly  provided  that  the  payments  should  be 
made  at  the  discretion  of  the  trustee,  —  a  result  more  in  accordance 
with  the  rules  of  interpretation  than  a  strict  adherence  to  a  definition  to 
the  extent  of  defeating  the  accomplishment  of  the  benefit  intended  by  the 
donor. 

555 


§  386  b.]  PERPETUITIES   AND   ACCUMULATIONS.       [CHAP.   XIII. 

pose,  and  is  so  limited  that  it  is  not  repugnant  to  the  rule 
against  perpetuities  and  is  in  other  respects  legal,  neither  the 
trustees,  nor  the  cestui  que  trust,  nor  his  creditors  or  assign- 
ees, can  divest  the  property  from  the  appointed  purposes.^  (a) 
Any  conveyance,  whether  by  operation  of  law  or  by  the  act 
of  any  of  the  parties,  which  disappoints  the  purposes  of  the 
settlor  by  divesting  the  property  or  the  income  from  the  pur- 
poses named,  would  be  a  breach  of  the  trust.  Therefore  it 
may  be  said,  that  the  power  to  create  a  trust  for  a  specified 
purpose  does,  in  some  sort,  impair  the  power  to  alienate 
property. 

§  386  b.  In  the  cases  referred  to  in  the  last  section,  it  will 
be  perceived  that  the  trust  may  be  for  a  particular  purpose, 
and  that  purpose  may  not  be  exclusively  for  the  benefit  of 
the  primary  cestui  que  trust;  as  where  an  estate  was  vested 
in  trustees  by  a  marriage  settlement  in  trust  to  apply  the 
annual  produce  thereof  "for  the  maintenmice  and  support  of 
A.  B. ,  his  wife  and  children, "  it  was  held  that  the  wife  and 
children  were  to  be  supported,  and  that  A.  B.  was  entitled 
to  the  surplus  after  their  support,  and  that  such  surplus 
would  go  to  his  assignees  in  case  of  his  bankruptcy :  ^  but 
when  the  trustees  have  an  arbitrary  power  of  applying  such 
part  of  an  income  as  they  see  fit  to  support  of  a  cestui  que 
trust,  and  for  no  other  purpose,  it  was  held  that  nothing 
passed  to  his  assignees.  ^     And  so  if  the  trustees  are  to  apply 

1  Rife  V.  Geyer,  59  Penu.  St.  393 ;  Wells  v.  McCall,  64  id.  207;  White 
V.  White,  30  Vt.  342  ;  Clute  v.  Bool,  8  Paige,  83 ;  Bramhall  v.  Ferris,  14 
N.  Y,  44  ;  Doswell  v.  Anderson,  1  P.  &  H.  (Va.)  185;  Raikes  v.  Ward, 
1  Hare,  445  ;  Crockett  v.  Crockett,  id.  451 ;  Wetmore  v.  Truslow,  51  N.  Y. 
338;  Graff  v.  Bonnett,  31  N.  Y.  9;  Locke  v.  Mabbett,  3  Court  of  App. 
Dec.  68;  Blackstone  Bank  v.  Davis,  21  Pick.  42 ;  Etches  v.  Etches,  3  Drew. 
441 ;  Genet  v.  Beekman,  45  Barb.  382  ;  Chase  v.  Chase,  2  Allen,  101 ;  Lor- 
ing  V.  Loring,  100  Mass.  340 ;  Cole  v.  Littlefield,  35  ]\le.  439.  See  ante, 
§  117,  and  notes. 

2  Page  V.  Way,  3  Beav.  20. 

8  Twopenny  v.  Peyton,  10  Sim.  487 ;  Re  Sanderson's  Trust,  3  K.  &  J. 
497;  Lord  v.  Bun,  2  Y.  &  C.  Ch.  98 ;  Holmes  v.  Penney,  3  K.  &  J.  90. 

(a)  See  Young  v.  Snow,  167  Mass.  287;  Sidway  v.  Isichol,  62 
Ark.  146. 

556 


CHAP.    XIII.]  RESTRAINTS   UPON   ALIENATION.  [§  388. 

the  money  to  the  support  of  one  and  his  wife  and  children, 
nothing  tangible  can  i)ass  to  the  assignees ; '  but  if  the  power 
is  not  arbitraj-y,  but  is  imperative  on  the  trustees  to  pay  over 
the  income  for  the  support  of  the  cestui  que  trust  and  another 
person  or  persons,  the  assignees  are  entitled  to  take  a  part 
upon  the  insolvency  of  one,  or  the  whole  in  the  event  of  the 
death  of  the  others.  ^ 

§  387.  There  is  a  further  exception  to  the  general  rule, 
that  an  equitable  interest,  without  the  right  to  alienate,  can- 
not be  created ;  and  that  is  in  the  case  of  trusts  created  for 
married  women.  It  is  not  unusual  to  create  trusts  for  mar- 
ried women,  and  give  such  women  all  the  rights  of  unmarried 
women  over  their  separate  Equitable  interests,  and  at  the 
same  time  to  insert  a  clause  against  their  anticipating  the 
income,  by  which  means  they  are  unable  to  assign  or  trans- 
fer it,  or  in  any  way  receive  any  benefit  from  the  property, 
except  by  receiving  the  income,  as  it  becomes  due  and 
payable.^ 

§  388.  But  though  a  settlor  cannot  put  a  restraint  upon 
alienation,  or  exclude  the  rights  of  creditors,  he  may  settle 
property  upon  another  in  such  manner  that  it  cannot  be 
alienated,  and  creditors  and  assignees  cannot  take  it.  But 
in  such  case  the  cestui  que  trust  must  lose  the  use  of  the  prop- 
erty in  case  of  his  bankruptcy.  Thus  A.  may  settle  projierty 
upon  B.  until  alienation  or  bankruptcy,  with  a  limitation 
over  to  C.  upon  cither  event.  Or  A.  may  give  real  or  per- 
sonal estate  to  B.  with  a  proviso,  that,  on  alienation  or  bank- 
ruptcy, it  shall  shift  over  to  C*     But  a  clause  divesting  the 

1  Godden  v.  Crowhurst,  10  Sim.  642;  Kearsley  v.  "Woodcock.  3  Hare, 
185;  Wallace  v.  Anderson,  16  Beav.  533  ;  Hall  i'.  Williams  et  al.,  120  Mass. 
344. 

2  Rippon  V.  Norton,  2  Beav,  63 ;  Wallace  i-.  Anderson,  16  Beav.  533  ; 
Perry  v.  Roberts,  1  Myl.  &  K.  4. 

8  Pickering  v.  Coates,  10  Phila.  65 ;  A.sh  v.  Bowen,  id.  96.  See  this 
matter  stated  post,  chap,  on  Trusts  for  INIarried  Women,  §§  670.  671. 

*  Muggeridge  Trusts,  Johns.  Ch.  (Eng.)  6-J5 ;  Kearsley  r.  Woodcock, 
3  Hare,  185;  Joel  v.  Mills,  3  K.  &  J.  458;  Large's  Case,  2  Leon.  82; 

557 


§  389.]  PERPETUITIES    AND    ACCUMULATIONS.       [cHAP.    XIII. 

property  upon  alienation  alone,  will  embrace  only  the  volun- 
tary acts  of  the  party,  and  will  not  apply  to  transfers  by 
operation  of  law,  as  by  bankruptcy,^  unless  it  was  intended 
that  the  clause  should  have  so  wide  a  signification. ^  Nor 
will  a  power  to  confess  judgment  be  a  voluntary  act  of  alien- 
ation, unless  it  was  within  the  contemplation  of  the  par- 
tics  ;  ^  nor  will  the  marriage  of  a  woman  be  an  alienation  of 
her  cJioses  in  actio7i.^  So  if  there  is  a  clause  against  antici- 
pation, an  assignment  of  arrears  already  accrued,  and  not  of 
future  income,  is  good.^  An  assignment  in  general  words 
will  not  embrace  property  which  would  be  forfeited  by  such 
assignment.*^ 

§  389.  If  a  testator  devises  his  real  estate  in  strict  settle- 
ment, and  then  gives  his  personal  estate  to  such  tenant  in 
tail  as  first  attains  the  age  of  twenty-one,  if  the  tenant  in 
tail  is  not  of  age  at  the  testator's  death,  the  event  may  never 
occur,  and  the  trust  is  void.  But  if  the  personal  property  is 
given  upon  trusts  that  correspond  to  the  settlement  of  the 
real  estate,  with  a  proviso  that  it  should  not  vest  absolutely 

Churchill  v.  JNIarks,  1  Coll.  441 ;  Sharpe  v.  Cossent,  20  Beav.  470  ;  Shee 
V.  Hale,  13  Ves.  404  ;  Lewes  v.  Lewes,  6  Sim.  304  ;  Cooper  v.  Wyatt,  5 
Madd.  482 ;  Lockyer  v.  Savage,  2  Stra.  947  ;  Yarnold  v.  Moorhouse,  1  R. 
&  M.  364;  Stephens  v.  James,  4  Sim.  499;  Ex  parte  Oxlej,  1  B.  &  B.  257; 
Rochford  v.  Hackman,  9  Hare,  475  ;  Ex  parte  Hinton,  14  Ves.  598;  Stan- 
ton V.  Hall,  2  R.  &  M.  175;  Hall  v.  Williams,  120  Mass.  344;  Kichols  v. 
Eaton,  91  U.  S.  716. 

1  Lear  v.  Leggett,  2  Sim.  479  ;  1  R.  &  M.  690  ;  Wilkinson  v.  Wilkin- 
son, G.  Coop.  259;  3  Swanst.  528  ;  Whitfield  v.  Prickett,  2  Keen,  908. 

2  Cooper  V.  Wyatt,  5  Madd.  482 ;  Dommett  v.  Bedford,  6  T.  R.  684. 

8  Avison  V.  Holmes,  1  John.  &  II.  530;  Barnet  v.  Blake,  2  Dr.  &  Sm. 
117. 

4  Bonfield  v.  Hassell,  32  Beav.  217. 

5  Re  Stulz  Trusts,  4  De  G.,  M.  &  G.  404 ;  1  Eq.  R.  334. 

6  Re  Waley's  Trust,  3  Eq.  R.  380.  And  as  to  the  general  effect  of 
proceedings  in  insolvency  and  bankruptcy,  and  of  annulling  the  proceed- 
ings, see  Lloyd  v.  Lloyd,  1  W.  N.  307 ;  Pym  v.  Lockyer,  12  Sim.  394  ; 
Brandon  v.  Aston,  2  Y.  &  C.  Ch.  24;  Churchill  v.  Marks,  1  Coll.  441; 
Townsend  v.  Early,  34  Beav.  23;  Martin  v.  Margham,  14  Sim.  230;  Gra^ 
ham  V.  Lee,  23  Beav.  388. 

558 


CHAP.    XIII.]  LEGISLATION.  [§  390. 

in  any  tenant  in  tail  unless  he  attained  twenty-one,  the  trust 
is  good.' 

§  390.  Thus  where  trusts  are  complete  in  themselves,  or 
arc  what  arc  termed  executed  trusts,  courts  will  not  mould, 
alter,  or  jmt  any  pectiliar  construction  on  them,  in  order  to 
avoid  or  evade  the  rule  against  perpetuities.  The  ordinary 
rules  of  construction  will  be  adhered  to  without  regard  to 
the  consequences  of  avoiding  trusts  that  are  illegal. ^  But  in 
cases  of  executory  trusts,  where  trustees  are  directed  to 
settle  a  formal  deed  of  trust  upon  terms  which  are  faintly 
and  incompletely  sketched,  another  rule  will  be  applied.  If 
from  the  articles  or  will  it  ajipears  that  a  perpetuity  was 
intended,  that  must  be  the  end  of  the  trust,  whether  exe- 
cuted or  executory.  But  if  the  direct  object  of  the  limita- 
tions suggested  in  the  articles  is  not  the  creation  of  a  perpe- 
tuity, and  if  the  remoteness  is  confined  to  some  of  the 
distant  links  only  in  the  chain  of  limitations,  equity,  in  de- 
creeing the  settlement,  will  carry  into  effect  the  general 
intention,  especially  if  the  expression  of  that  intention 
clearly  indicates  that  the  limitations  are  to  be  carried  out  so 
far  as  the  law  allows.^ 

1  Gosling  V.  Gosling,  1  De  G.,  J.  &  S.  1,  17,  Am.  ed.  Perkins,  note  1 ; 
s.  c.  L.  R.  1  II.  L.  279  ;  Lincoln  v.  Newcastle,  12  Ves.  218;  Dungauuoa 
V.  Smith,  12  CI.  &  Fin.  546 ;  Scarsdale  v.  Curzon,  1  John.  &  H.  40. 

-  Blagrave  i*.  Hancock,  16  Sim.  371. 

8  Ante,  §  370;  Bankes  v.  Le  Despencer,  10  Sim.  570;  7  Jur.  210;  11 
Sim.  508  ;  Lincoln  v.  Newcastle,  3  Ves.  887  ;  12  Ves.  218  ;  Phipps  v. 
Kelynge,  2  V.  &  B.  57,  n.  ;  Woolmore  v.  Burrows,  1  Sim.  512  ;  Dorchester 
V.  Effingham,  10  Sim.  587,  588,  n. ;  3  Beav.  180  ;  Kampf  v.  Jones,  2  Keen, 
750  ;  Tregonwell  v.  Sydenham,  3  Dow,  194  ;  1  Jar.  on  Wills,  235,  n. ;  see 
argument  of  Sir  Edward  Sugden  in  Bengough  v.  Edridge,  1  Sim.  220, 
227;  Mogg  r.  Mogg,  1  Mer.  6.j4  ;  1  Jar.  on  Pow.  Dev.  414,  and  note; 
Trevor  v.  Trevor,  13  Sim.  108  ;  1  II.  L.  Cas.  239;  Tcnnent  v.  Tennent, 
Drury,  161 ;  Boydell  v.  Golightly,  14  Sim.  340  ;  White  v.  Briggs,  15  Sim. 
17  ;  Vanderplank  v.  King,  3  Hare,  5 ;  Monypenny  i".  Deering,  7  Hare,  508  ; 
2  De  G.,  M.  &  G.  145  ;  16  :M.  &  W.  418;  Hale  r.  Pew,  25  Beav.  335; 
Ilumberston  v.  Ilumberston.  2  Vern.  737  ;  1  P.  Wms.  3-'!2:  Pr.  Ch.  455; 
Deerliurst  v.  St.  Albans,  5  !Madd.  232 ;  Jervoi?e  v.  Northumberland,  1  J. 
&  W.  559;  Blackburn  v.  Stables,  2  V.  &  B.  367;  Rowland  r.  Morgan,  2 
Phill.  703 ;  Parfitt  v.  Ilember,  L.  R.  4  Eq   443. 

559 


§  391.]  TERPETUITIES    AND    ACCUMULATIONS.       [CHAP.    XIII. 

§  391.  In  some  of  the  States,  legislation  has  been  had 
whereby  the  period  within  which  estates  must  vest  is  short- 
ened. Thus  in  Alabama  ^  estates  may  be  given  to  wife  and 
children,  or  children  only,  severally,  successively,  and 
jointly,  and  to  the  heirs  of  the  body  of  the  survivor,  if  they 
come  of  age,  and  in  default  thereof  over.  But  gifts  to 
others  than  wife  and  children  must  vest  within  the  term  of 
three  lives  in  being,  and  ten  years  thereafter.  In  Connecti- 
cut, 2  no  estate  can  be  given  by  deed  or  will  to  any  person  or 
persons,  except  such  as  are  in  being,  or  to  the  immediate 
issue  or  descendants  of  such  as  are  in  being  at  the  time  of 
making  the  deed  or  will.  In  New  York,=^  Michigan,^  Minne- 
sota,^ and  Wisconsin,^  the  absolute  power  of  alienation  can- 
not be  suspended,  by  any  limitation  or  condition,  for  a 
longer  period  than  the  continuance  of  two  lives  in  being  at 
the  creation  of  the  estate,  except  that  a  contingent  remain- 
der in  fee  may  be  limited  on  a  prior  remainder  in  fee  to  take 
effect  in  the  event  that  the  persons  to  whom  the  first  re- 
mainder is  limited  shall  die  under  the  age  of  twenty-one  years, 
or  upon  any  other  contingency  by  which  the  estate  of  such 
persons  may  be  determined  during  their  minority.  Succes- 
sive limitations  of  estates  for  life  are  not  valid  except  to  per- 
sons in  being  at  the  time  of  their  creation.  And  if  a 
remainder  is  limited  on  more  than  two  successive  estates  for 
lives  in  being,  all  the  subsequent  successive  estates  are  void ; 
and  upon  the  death  of  those  two  persons  the  remainder  will 
take  effect  as  if  no  other  life -estate  had  been  created.  No 
remainder  can  be  created  for  the  life  of  a  person  other  than 
the  grantee  or  devisee  of  such  estate,  unless  such  remainder 
is    in  fee ;   nor  can  a  remainder   be    created  upon  such    an 

1  Code,  1852.  §  1309. 

2  Comp.  Stat.  185-1,  p.  630,  §  4. 

3  2  Rev.  Stat.  C4th  ed.)  133,  §§  15-20;  Knox  v.  Jones,  47  N.  Y.  398; 
Wood  V.  "Wood,  5  Paige,  590;  Ainory  v.  Lord,  5  Seld.  .503;  Schutter  r. 
Smith,  41  N.  Y.  328  ;  Gott  v.  Cook,  7  Paige,  631  ;  Van  Vechten  v.  Vau 
Vechten,  8  Paige,  104. 

4  Comp.  Laws,  1857,  c.  85,  §§  15-26. 
6  Comp.  Stat.  1859,  c.  31,  §§  15-26. 

«  Rev.  Stat.  1858,  c.  83,  «§  15-26. 
560 


CHAP.    XIII.]  LEGISLATION.  [§  .392. 

estate  in  a  term  of  years,  unless  it  is  for  the  whole  residue 
of  the  term.  If  more  than  two  lives  are  named,  the  remain- 
der takes  effect  upon  the  death  of  tlie  two  persons  first  named, 
in  the  same  manner  as  if  no  other  persons  had  been  named 
or  lives  introduced.  A  contingent  remainder  cannot  be 
limited  on  a  term  for  years,  unless  the  contingency  on  which 
it  is  limited  is  such  that  it  must  vest  during  the  continuance 
of  two  lives  in  being  at  the  creation  of  such  remainder,  or  at 
the  termination  of  such  term  of  years.  Thus  a  limitation  to 
A.  for  life,  remainder  to  B.  for  life,  remainder  to  C.  and  D., 
and  the  survivor  of  them,  is  within  the  statute,  and  void  as 
to  C.  and  D.  as  a  limitation  upon  more  than  two  lives  in 
being.'  If  the  power  of  alienation  is  suspended  for  an  in- 
definite period,  the  trust  is  void.^ 

§  392.  In  Ohio, 3  no  estate  can  be  limited  to  any  person  or 
persons,  except  they  arc  in  being,  or  to  the  immediate 
descendants  of  such  as  are  in  being  at  the  time  of  making  of 
the  deed  or  will.  In  Mississippi,*  fees -tail  are  prohibited, 
and  converted  into  fees-simple ;  and  estates  may  be  limited 
in  succession  to  two  donees  in  being,  and  to  the  heirs  of  the 
body  of  the  remainder-man,  and  in  default  thereof  to  the 
heirs  of  the  donor  in  fee.  In  Indiana,^  the  power  of  selling 
lands  cannot  be  suspended,  by  any  limitation  or  condition, 
longer  than  the  continuance  of  any  number  of  specified  lives 
in  being  at  the  time  of  the  creation  of  the  estate ;  except  that 
contingent  remainders  in  fee  may  be  limited  on  a  prior  re- 
mainder in  fee,  to  take  effect  in  the  event  that  the  person  or 
persons  to  whom  the  first  remainder  is  limited  shall  be 
under  the  age  of  twenty-one  years,  or  upon  any  other  contin- 
gency by  which  the  estate  of  such  person  or  persons  may  be 
determined   during   their    minorities.       In    Kentucky,^   the 

1  Arnold  r.  Gilbert.  5  Barb.  190. 

2  Donaldson  v.  American  Tract  See,  1  N.  Y.  Sup.  Ct.  Add.  15;  Leon- 
ard r.  Bell,  1  N.  Y.  Sup.  Ct.  008;  Kiah  v.  Grenier,  id.  388. 

8  Rev.  Stat.  1854,  c.  42,  §  1. 

*  Code,  18.57,  c.  38,  §  1,  art.  3  ;  see  Jordan  v.  Roach,  32  Miss.  481. 
6  Rev.  Stat.  1852,  p.  238,  §  40. 
«  Rev.  Stat.  c.  80,  §  34. 
VOL.  I.  — 36  661 


§  393.]  PEKPETUITIES   AND   ACCUMULxVTIONS.      [CHAP.   XIII. 

absolute  power  of  alienation  cannot  be  suspended  by  limita- 
tions or  conditions  for  a  longer  period  than  during  a  life  or 
lives  in  being  and  twenty-one  years  and  ten  months;  which 
is  substantially  the  common-law  rule  in  the  form  of  a  stat- 
ute. So,  in  Iowa/  alienation  cannot  be  suspended  for  a 
period  longer  than  lives  in  being  and  twenty-one  years.  In 
Arkansas^  and  Vermont,^  their  constitutions  declare  that  a 
perpetuity  shall  not  be  allowed.  What  is  a  perpetuity  in 
those  States  would  necessarily,  in  the  absence  of  legislation, 
be  determined  by  the  common-law  rule.  So  it  is  conceived 
that  the  common  law  prevails  in  those  States.  In  all  the 
other  States,  except  perhaps  Louisiana,  where  the  rules  of 
property  were  derived  from  the  civil  law  or  the  code  of 
France,  and  California,  where  they  were  derived  from  the 
Spanish  laws,  the  common-law  rules  as  to  perpetuities  are  in 
force,  and  trusts  that  are  contrary  to  these  rules  are  void. 

§  393.  Intimately  connected  with  this  matter  is  the  rule 
against  accumulations.  Trusts  for  accumulation  must  be 
strictly  confined  within  the  limits  of  the  rule  against  perpe- 
tuities. It  has  been  seen  that  a  settlor  may  restrain  the 
alienation  of  property  for  a  life  or  lives  in  being  and  twenty- 
one  years;  and,  in  case  the  beneficiary  is  then  en  ventre  sa 
mere,  an  addition  of  nine  months  may  be  made  to  the  term. 
In  analogy  to  this  rule,  a  settlor  may  prevent  the  beneficial 
enjoyment  of  property  for  the  same  length  of  time,  by  direct- 
ing an  accumulation  of  the  interest,  income,  rents,  or  profits.* 

1  Code,  1851,  p.  1191. 

2  Const,  art.  2,  §  19. 

3  Const,  pt.  2,  §  36;  Gen.  Stat.  1863,  pp.  25,  446, 

4  Fosdick  V.  Fosdick,  6  Allen,  43  ;  Hooper  v.  Hooper,  9  Cush.  122  5 
Thorndike  v.  Loring,  15  Gray,  391 ;  Boughton  v.  James,  1  Coll.  26;  1  H. 
L.  Cas.  406  ;  Southampton  v.  Hertford,  2  V.  &  B.  54  ;  Marshall  v.  Hollo- 
way,  2  Swanst.  432  ;  Curtis  v.  Lukin,  5  Beav.  147;  Brown  v.  Stoughton, 
14  Sim.  3G9  ;  Scarisbrooke  v.  Skelmersdale,  17  Sim.  187  ;  Turvin  r.  New- 
come,  3  K.  &  J.  16  ;  Craig  v.  Craig,  3  Barb.  Ch.  76 ;  Mathews  v.  Keble, 
L.  R.  1  Eq.  467 ;  L.  E.  3  Ch.  691 ;  Killam  v.  Allen,  52  Barb.  605;  Dutch 
Reform  Church  v.  Brandon,  id.  228 ;  White  v.  Howard,  id.  294  ;  Hillyard 
V.  Miller,  10  Barr,  326. 

562 


CHAP.   XIII.]  ACCUMULATIONS.  [§  394 

If  a  trust  for  accumulation  may  possibly  exceed  this  limit, 
it  is  wholly  void,  and  it  cannot  be  cut  down  to  the  legal 
limit,  (a) 

§  304.  The  above  is  the  rule  where  there  are  no  statutes 
to  control  it.  Trusts,  by  which  the  vesting,  alienation,  or 
enjoyment  of  property  is  postponed  beyond  the  legal  period, 
are  considered  as  contrary  to  public  policy,  and  therefore 
void ;  and  as  courts  cannot  substitute  legal  directions  in  the 
place  of  illegal  provisions  in  a  will,  the  whole  fails  if  there 
is  an  illegal  gift  for  accumulation.  The  period  during  which 
accumulation  might  go  on  was  found  to  be  inconvenient 
in  case  a  settlor  availed  himself  of  all  its  terms.  Thus 
Mr.  Thellusson,  by  an  ingenious  and  skilful  use  of  these 
legal  limitations,  constructed  a  will  by  which  a  fortune  of 
<£ GOO, 000  was  left  to  accumulate  for  some  person  to  come 
into  existence  in  the  future,  answering  a  certain  description, 
while  mere  pittances  were  given  to  his  children  and  grand- 
children then  in  being.  It  was  calculated  that  accumula- 
tions might  go  on  under  this  will  from  seventy-five  to  one 
hundred  years,  and  that  the  gross  accumulation  would  amount 
toasum'frora  £32,000,000  to  £100,000,000,  according  to 
the  time  during  which  it  might  accumulate.  The  will  was 
most  carefully  considered  and  discussed  in  all  the  courts, 
but  it  was  found  to  be  drawn  carefully  within  the  law,  and 
all  its  provisions  were  sustained.^  Thereupon  Parliament 
interfered,  and  passed  a  statute,  usually  called  the  Thellusson 
Act,  which  curtailed  the  period  during  which  accumulations 

1  Thellusson  r.  Woodford,  4  Yes.  227  ;  11  Ves.  112  ;  4  Kent,  Cora. 
285. 

(a)  See  Scott  r.  West,  63  Wis.  to  accumulate.     Rogers'  Estate,  179 

529.      An   accumulation   for  more  Penn.  St.  602. 

than  twenty-one  years  may  legally  In  Xew  York,  directions  to  ac- 

take    place   by    operation    of    law.  cumulate  rents,   except  during  the 

Bryan  c.  Collins,  16  Beav.  17.     A  minority  of  legatees,   are  void  by 

direction  to  apply  rents  or  income  statute.     See  Silencer  v.  Spencer,  56 

in  payment  of  a  specified  sum  to  a  X.  Y.  S.  460. 
designated  person  is  not  a  direction 

563 


§  395.]  PERPETUITIES   AND   ACCUMULATIONS.      [CHAP.   XIII. 

might  be  directed.  1(a)  This  act  established  four  alternate 
periods  during  which  accumulations  might  be  made :  (1)  The 
life  of  the  settlor ;  (2)  Twenty-one  years  from  the  death  of 
the  settlor;  (3)  The  minority  or  minorities  of  any  persons 
living  at  the  death  of  the  settlor ;  (4)  During  the  minority 
or  minorities  of  any  person  or  persons  who,  if  of  full  age, 
would  be  entitled  under  the  limitations  to  the  income  which 
is  directed  to  be  accumulated. 

§  395.  It  has  been  determined  that  these  four  periods  are 
alternative,  and  not  cumulative,  and  that  accumulations  must 
be  confined  to  one  of  them.^  If  the  accumulation  does  not 
begin  until  several  years  after  the  testator's  death,  it  must 
cease  at  the  end  of  twenty-one  years  from  his  death, ^  exclud- 
ing the  day  of  his  death.*  The  act  further  directs,  that  any 
accumulation  directed  contrary  to  its  provision  shall  be  void. 
By  these  words  accumulations  directed  contrary  to  the 
statute  are  not  wholly  void,  as  at  common  law,  but  only  the 
excess  beyond  the  time  allowed  by  the  statute  is  void.^     Mr. 

1  Stat.  39  and  40  Geo.  III.  c.  98. 

2  Ellis  v.  Maxwell,  3  Beav.  587  ;  Rosslyn's  Trust,  16  Sim.  391  ;  Wilson 
V.  Wilson,  1  Sim.  (n.  s.)  288. 

3  Nettleton  v.  Stephenson,  3  De  G.  &  Sm.  366  ;  Att.  Gen.  v.  Poulden, 
3  Hare,  555  ;  Webb  v.  Webb,  2  Beav.  493  ;  Shaw  v.  Rhodes,  1  Myl.  &  Cr. 
135. 

4  Toder  v.  Sansom,  1  Brown,  P.  C.  468  ;  Lester  v.  Garland,  15  Yes. 
248 ;  East  v.  Lowndes,  11  Sim.  434.  And  the  day  of  the  death  was  ex- 
cluded by  the  rules  of  the  common  law,  independently  of  the  statute. 
Toder  v.  Sansom,  ut  supra. 

6  Griffiths  V.  Vere,  9  Ves.  127  ;  Palmer  v.  Holford,  4  Russ.  403 ;  Lang- 
don  V.  Simson,  12  Ves.  295;  Rosslyn's  Trust,  16  Sim.  391 ;  Freke  v.  Lord 
Carbery,  L.  R.  16  Eq.  461.  There  are  a  great  number  of  cases  upon  this 
construction,  but  they  are  not  important  in  America.  The  reader  can  see 
1  Jarm.  on  Wills,  286  ;  Hill  on  Trustees,  394  ;  Lade  v.  Holford,  Amb. 
479  ;  Eyre  v.  Marsden,  2  Keen,  564  ;  4  Myl.  &  Cr.  231 ;  Marshall  v.  Hol- 
loway,  3  Swanst.  432  ;  Southampton  v.  Hertford,  2  V.  &  B.  61 ;  Haly  v. 
Bannister,  4  Madd.  277. 

(a)  See    Smith  v.   Cuninghame,    729.     Upon  the  Accumulations  Act 
13  L.  R.  Jr.  480.      The  periods  al-    of  1892,  see  In  re  Danson,  13  Rep. 
lowed  by  this  Act  are  not  cumula-    633. 
tive.      Jagger  v.  Jagger,  25  Ch.  D. 
564 


CHAP.   XIII.]  ACCUMULATIONS.  [§  396. 

Lewis  calls  this  a  "  rule  of  construction  entirely  novel. "  '  It 
is  also  said,  that  the  act  is  one  of  restraining  force,  and  can- 
not give  validity  to  trusts  for  accumulation,  which  arc  in 
themselves  void,  as  transgressing  the  common-law  limits  of 
a  perpetuity.  Thus  a  direction  to  accumulate  beyond  the 
time  allowed  by  the  statute,  but  within  the  time  allowed  by 
the  common  law,  will  be  good  for  the  actual  time  allowed  by 
the  statute,  and  void  only  for  the  excess;  but  a  direction  to 
accumulate,  beyond  the  rule  of  common  law  against  perpe- 
tuity, is  wholly  void  notwithstanding  the  statute.  Conse- 
quently, in  England  a  trust  for  accumulation  may  verge 
almost  upon  the  outside  of  the  limit  of  a  perpetuity,  and  yet 
be  void  only  for  the  excess  beyond  the  time  established  in  the 
statute;  but  if  a  trust  for  accumulation  transcends  in  the 
slightest  degree  the  boundary  of  a  perpetuity,  it  is  wholly 
void,  and  will  fail  without  regard  to  the  actual  course  of 
events.2 

§  396,  If  a  good  bequest  is  made  to  a  devisee,  subject  to 
an  illegal  or  void  direction  to  accumulate,  as  where  such 
direction  is  independently  engrafted  upon  the  devise,  and 
can  be  stricken  out  without  destroying  the  substantial  form 
of  the  gift,  the  gift  may  be  held  to  be  good,  but  the  direction 
to  accumulate  void.^  But  where  the  gift  is  limited  to  take 
effect  after  a  prescribed  period  of  accumulation,  and  out  of 
the  accumulated  fund,  as  part  of  the  subject-matter  of  the 
gift,  and  such  period  of  accumulation  is  illegal  or  too  re- 
mote, the  gift  itself  will  fail,  as  the  form  of  the  gift  in  such 
case  is  of  the  suljstance  of  it.  If  the  gift  and  all  its  accu- 
mulations are  of  necessity  to  vest  in  some  person  absolutely, 
in  such  manner  that  he  will  have  a  right  to  call  for  the  fund, 

*  Lewis  on  Per.  593. 

2  Lewis  on  Per.  593,  594;  Hargrave,  Accum.  91,  110  ;  1  Pow.  on  Devi, 
by  Jarm.  419;  2  Prest.  Abst.  1S3. 

8  Ilaxtum  v.  Corse,  2  Barb.  Ch.  506 ;  Craig  v.  Craig.  3  Barb.  Ch.  70 ; 
Martin  v.  Margham,  14  Sim.  230;  Williams  v.  Williams,  4  Selden,  525; 
Phelps  V.  Pond,  23  N.  Y.  09  ;  Kilpatriok  v.  Johnson,  15  N.  Y.  322  ;  Haw- 
ley  r.  James,  5  Paige,  31.S ;  Philadelphia  v.  GirarJ,  45  Penn.  St.  1. 

*  Amory  v.  Lord,  5  Selden,  403, 

565 


§  397.]  PERPETUITIES   AND    ACCUMULATIONS.       [CHAP.   XIII. 

and  stop  the  accumulations  within  the  legal  period,  the  be- 
quest will  be  good,  although  such  persons  should  allow  the 
accumulations  to  go  on  as  directed;^  that  is,  the  same  rule 
applies  as  in  the  case  of  perpetuities.  The  law  concerns 
itself  with  the  possibilities  of  an  illegal  accumulation,  and 
not  with  the  fact,  whether  a  person,  having  an  absolute 
vested  right  to  a  fund,  allows  it  to  go  on  accumulating  in 
accordance  with  a  void  direction.  ^ 

§  397.  When  a  direction  to  accumulate  is  void  for  a  part 
of  the  term,  the  income  during  such  void  part  will  belong  to 
the  heir  or  next  of  kin,  or  to  the  residuary  legatee.  Mr. 
Jarman  has  pointed  out  the  destination  of  such  income  as 
follows:  (1)  Where  there  is  a  present  gift  in  possession,  and 
the  direction  for  accumulation  is  merely  to  govern  the  mode 
of  enjoyment,  the  result  is  to  give  those  entitled  the  present 
income,  the  same  as  if  the  direction  had  not  been  given.^ 
(2)  Where  the  trust  for  accumulation  is  grafted  upon  an 
estate  where  vesting  is  deferred  or  made  contingent  until 
after  the  period  of  accumulation,  the  statute  by  stopping  the 
accumulation  does  not  hasten  the  vesting  or  the  possession, 
and  the  income  goes  to  the  residuary  legatee  or  the  heir, 
according  as  it  is  personal  or  real  estate,  until  the  vesting 
or  possession  of  the  estate  is  matured.  But  where  the  resi- 
due is  not  given  absolutely,  but  only  for  life  or  years,  the 
interest  upon  a  legacy  thus  directed  to  be  accumulated  beyond 
the  legal  period  goes  into  the  residue  of  the  estate  as  capi- 
tal.* (a)     (3)    Where  a  residue  is  directed  to  be  accumulated, 

1  Phipps  V.  Kelyuge,  2  Ves.  &  B.  57,  n.,  63,  62  ;  Tregonell  v.  Syden- 
ham, 3  Dow,  194 ;  Lewis  on  Per.  640  ;  Conner  v.  Ogle,  4  Md.  Ch.  443 ; 
Saunders  v.  Vautier,  4  Beav.  115  ;  Cr.  &  Phil.  240  ;  Oddie  v.  Brown,  4  De 
G.  &  J.  179  ;  Bateraan  v.  Hotchkin,  10  Beav.  426 ;  Bacon  v.  Proctor,  T.  & 
R.  31 ;  Briggs  v.  Oxford,  1  De  G.,  M.  &  G.  363 ;  Williams  v.  Lewis,  0  H. 
L.  Cas.  1013.  2  Ante,  §  181. 

8  Trickey  v.  Trickey,  3  Myl.  &  K.  500;  Clulow's  Trust,  5  Jur.  (n.  s.) 
1002  ;  28  L*  J.  Ch.  696 ;  Combe  v.  Hughes,  11  Jur.  (n.  s.)  194;  1  Jarm. 
on  Wills,  292;  Hawley  v.  James,  5  Paige,  318. 

*  Jones  V.  Maggs,  9  Hare,  605;   Macdonald  v.  Brice,  2  Keen,  276; 

(a)   See  Vine  v.  Raleigh,  [1891]    467  ;  In  re  Philips,  49  L.  J.  Ch.  198; 
2  Ch.  13;  In  re  Mason,  [1891]  3  Ch.    Brown  v.  Wright,  168  Mass.  506. 
566 


CHAP.    XIII.]  ACCUMULATIOXS.  [§  398. 

the  income,  when  its  accumulation  becomes  illegal,  will  go 
to  the  heir  or  next  of  kin,  according  as  the  property  may  be 
real  or  personal  estate.'  (a)  (4)  The  income  of  the  accumu- 
lations follows  the  same  rule  as  the  accumulation. ^  These 
are  substantially  the  same  rules  that  ai)))ly  to  the  distrilju- 
tion  of  income  which  is  illegally  directed  to  be  accumulated 
at  common  law. 

§  398.  In  New  York,^  (h)  Michigan,^  Wisconsin,^  (c)  and 
Minnesota,"  the  common-law  rules  in  relation  to  accumula- 
tions are  changed  by  statutes,  which  are  substantially  the 

Eyre  j'.  ;Marsden,  id.  574 ;  Ellis  v.  Maxwell,  3  Beav.  587 ;  Nettleton  v. 
Stephenson,  3  I)e  G.  &  Sm.  366;  Barrington  v.  Liddell,  10  Hare,  429; 
Att.  Gen.  v.  Poulden,  3  Hare,  555;  Crawley  v.  Crawley,  7  Sira.  427; 
Morgan  v.  Morgan,  4  De  G.  &  Sm.  175;  Hull  v.  Hull,  24  N.  Y.  G47;  1 
Jarm.  on  Wills,  292. 

1  Skrymsher  v.  Northcote,  1  Swanst.  566 ;  Macdonald  v.  Bryce,  2  Keen, 
276  :  Pride  v.  Fooks,  2  Beav.  437;  Elborne  v.  Goode,  14  Sim.  165;  Wilson 
V.  Wilson,  1  Sim.  (x.  s.)  288;  Bourne  r.  Bucktou,  2  Sim.  (x.  s.)  91 ;  Oddie 
V.  Brown,  4  De  G.  &  J.  179 ;  Halford  v.  Stains,  16  Siui.  488 ;  Wilde  ». 
Davis,  1  Sm.  &  G.  475  ;  Eyre  v.  Marsden,  2  Keen,  564;  4  Myl.  &  Cr.  431 ; 
Edwards  r.  Tuck,  3  De  G.,  M.  &  G.  40;  Burt  v.  Sturt,  10  Hare,  415;  I 
Jarm.  on  Wills,  292. 

2  Crawley  v.  Crawley,  7  Sim.  427;  O'Neill  v.  Lucas,  2  Keen,  316; 
Morgan  r.  Morgan,  4  De  G.  &  Sm.  175;  20  L.  J.  Ch.  441;  1  Jarm.  on 
Wills,  292. 

8  Rev.  Stat.  (4th  ed.)  p.  135;  Craig  v.  Craig,  3  Barb.  Ch.  76;  Killam 
V.  Allen,  52  Barb.  605;  Hawley  r.  James,  5  Baige,  480;  Hull  v.  Hull,  24 
N.  Y.  647  ;  Robinson  v.  Robinson,  5  Lansing,  167;  Williams  r.  Williams, 
8  N.  Y.  358;  Kilpatrick  v.  Johnson,  15  X.  Y.  322;  Haxtun  v.  Corse,  2 
Barb.  Ch.  508;  Lang  v.  Ropke,  5  Sandf.  S.  C.  363;  Meserole  v.  Meserole, 
1  Hun,  66;  Pray  v.  Hedgeman,  27  Hun,  603. 

*  Comp.  Laws,  1857,  c.  85,  §§  15-26. 

6  Rev.  Stat.  1858,  c.  83,  §§  15-26. 

«  Comp.  Stat.  1859,  c.  31,  §§  15-26. 

(a)  See  /n  re  Dallmeyer,  [1896]  (r)  The  Wisconsin  statute  limits 
1  Ch.  372.  the  rule  to  real  estate,  and  does  not 

(b)  See  Roe  v.  Vingut,  117  N.  Y.  apply  to  personalty.  Dodge  i-.  Wil- 
204  ;  Duncklee  r.  Butler,  56  N.  Y.  liams,  46  Wis.  70 

S.  491;  Farley  v.  Bucklin,  16  R.  L 
878. 

567 


§  399.]  PEKPETUITIES   AND   ACCUMULATIONS.       [CHAP.   XIII. 

same  in  each  State.  In  those  States  accumulations  may  be 
directed  by  deed  or  will,  during  the  minority  of  one  or  more 
pjersons,  to  commence  with  the  creation  of  the  estate  out  of 
which  the  accumulation  is  to  be  made,  and  to  end  with  the 
minority  of  the  persons  named.  If  there  is  a  direction  for 
an  accumulation  for  a  longer  period,  the  excess  only  is  void. 
In  Alabama,^  accumulations  can  go  on  only  for  ten  years, 
unless  they  are  for  the  benefit  of  a  minor  child  in  being  at 
the  creation  of  the  trust,  or  at  the  death  of  the  testator,  in 
which  case  they  may  continue  during  its  minority.  In  Penn- 
sylvania,^  trusts  for  accumulation  cannot  be  created  for  a 
longer  term  than  the  life  or  lives  of  the  grantor  or  testator, 
and  the  term  of  twenty-one  years  from  the  death  of  such 
grantor  or  testator,  and  if  these  limits  are  exceeded,  the 
excess  is  void.  In  the  other  States,  the  common-law  rules, 
as  before  stated,  are  supposed  to  prevail.  The  rule  in  regard 
to  accumulation  is  analogous  to  the  rules  in  regard  to  the 
vesting  of  executory  estates.  At  common  law,  the  same 
rule  prevails  in  both  cases.  In  many  of  the  States,  the 
rules  regulating  the  vesting  of  such  estates  have  been  altered 
by  statutes.  Whether  the  modification  of  those  rules  by  stat- 
ute, without  reference  to  the  rule  as  to  accumulations,  would 
also  alter  the  rule  as  to  accumulations  in  those  States  does 
not  seem  to  have  been  considered. 

§  399.  "Where  there  are  no  statutes  regulating  accumula- 
tions, a  direction  to  accumulate  a  fund  for  a  charity,  for  a 
term  beyond  the  common-law  limit,  does  not  vitiate  the  gift 
for  the  charity,^  although  no  limit  has  been  determined  by 
courts  during  which  an  accumulation  for  a  charity  may  be 
permitted.  It  is  probable  that  courts  would  take  care  that 
no  extraordinary  or  extravagant  term  for  accumulation 
should  be  allowed  for  a  future  and  prospective  good.  But 
where  there   are    statutes   against   accumulations,  charities 

1  Code,  1852,  §  1310. 

2  Purcl.  Dig.  1861,  p.  8.53,  §  9. 

8  Odell  V.  bdell,  10  Allen,  1 ;  but  see  Hillyard  v.  Miller,  10  Penn.  St. 
326;  Philadelphia  v.  Girard,  45  id.  1. 
568 


CHAP.   XIII.]  ACCUMULATIONS.  [§  400. 

will  be  governed  by  the  same  rules  unless  they  are  specially 
excepted. '  (a) 

§  400.  In  Bassil  v.  Lister,^  it  was  determined  that  a  direc- 
tion of  a  testator  that  premiums  on  policies  of  insurance 
should  be  paid  out  of  his  estate,  upon  the  lives  of  his  sons 
during  their  lives,  was  not  a  direction  for  an  accumulation 
within  the  ])rohibition  of  the  statute.  The  case  is  severely 
criticised  in  Jarman  on  Wills  ;2  but  it  would  seem,  that  it 
would  not  be  illegal  for  a  testator  to  direct  the  premiums  to 
be  paid  upon  a  life  policy,  if  the  primary  object  of  such  a 
direction  is  not  accumulation,  but  security  or  safety.  The 
question  cannot  arise,  however,  in  the  absence  of  statutory 
provisions  upon  the  subject  of  accumulations;  for  it  can  be 
an  accumulation  for  one  life  only  in  being  at  the  time,  and 
such  an  accumulation  is  legal  by  the  rules  of  the  common 
law.  {h) 

1  Martin  v.  ^largham,  14  Sim.  230. 

2  Bassil  I'.  Lister,  9  Hare,  177. 
8  1  Jarm.  291-297. 

(a)  See  AVharton  v.  Mastermau,  (b)  See  Re  Errington,  70  L.  T. 

[1895]  A.  C.  186.  616. 


569 


GENERAL   DUTIES   OF   TRUSTEES.  [CHAP.   XIV. 


CHAPTER   XIV. 

GENERAL   PROPERTIES    AND   DUTIES   OF   THE    OFFICE    OF    TRUSTEE. 

§  401.     A  trustee,  having  accepted  the  office,  is  bound  to  discharge  its  duties. 

§  402.     He  cannot  delegate  his  authority  except  to  agents  in  proper  cases. 

§  40.3.  Not  responsible  if  he  follow  directions  in  employing  agents. 

§  404.  "Where  agents  must  be  employed. 

§  405.  When  responsible  for  agents  and  attorneys. 

§  406.  When  not  responsible. 

§  407.  Difference  of  liability  in  law  and  equity. 

§  408.  Trustees  responsible  for  all  mischiefs  arising  from  delegating  dis- 

cretionary powers. 

§  409.  Employing  agents  or  attorneys  may  not  be  a  delegation  of  authority 

or  discretion. 

§  410.     A  sale  or  devise  of  the  trust  estate  not  a  delegation  of  the  trust. 

§  411.     Several  trustees  constitute  but  one  collective  trustee. 
§§  412,  413.     When  they  must  all  act  and  when  not. 

§  414.     As  to  the  survivorship  of  the  office  of  trustee. 

§  415.     General  rule  as  to  liability  for  cotrustees. 

§  416.  May  make  themselves  liable,  where  otherwise  they  would  not  be. 

§  417.  Trustees  must  use  due  diligence  in  all  cases,  or  they  will  be  liable 

for  cotrustees. 

§  418.  Cases  of  a  want  of  due  care  and  prudence. 

§  419.  In  case  of  collusion  or  gross  negligence,  a  trustee  will  be  liable  for 

acts  of  cotrustees. 

§  420.  When  cotrustees  are  liable  for  others  upon  sales  of  real  estate  under 

a  power. 

§  420  a.        Indemnifying  of  one  trustee  by  another. 

§  421  As  to  liability  of  coexecutors  for  the  acts  of  each  other. 

§  422.  An  executor  must  not  enable  his  coexecutor  to  misapply  the 

funds. 

§  423.  When  executors  must  all  join  they  are  not  liable  for  each  other's 

acts ;  but  they  must  use  due  diligence. 

§  424.  An  executor  must  not  allow  money  to  remain  under  the  sole 

control  of  his  coexecutor. 

§  425.  Executors  and  administrators  governed  by  the  same  rules. 

§  426.  Rule  where  coexecutors  or  cotrustees  give  joint   bonds  for  security 

of  the  administration  of  the  estate. 

§  427.     Trustees  can  make  no  profit  out  of  the  office. 

§  428.  Cannot  buy  up  debts  against  the  estate  or  cestui  que  trust  at  a  profit. 

§  429.  Cannot  make  a  profit  from  the  use  of  trust  funds  in  business,  trade, 

or  speculation. 

§  430.  All  persons  holding  a  fiduciary  relation,  subject  to  the  same  rule. 

570 


CHAP.    XIV.]       TRUSTEE   CANNOT    RENOUNCE    HIS   TRUST.       [§  401. 

§  431.  All  persons  holding  fiduciary  relations  to  an  estate,  subject  to 

the  M:imc  rule. 
§  432.  Can  receive  no  profit  for  serving  in  their  professional  characters  a 

trust  estate. 
§  433.  Trustees  can  set  up  no  claim  to  the  trust  estate,  and  ought  not  to 

betray  the  title  of  the  cestui  i/ue  trust. 
§  434.     In  F.nf^laiid,  u])i)n  failure  of  heirs  to  the  cestui  que  trust,  trustee  may 

hold  real  estate  to  his  own  use. 
§  435.     Speculative  (juestiona. 
§  436.     In  the  United  States,  the  interest  of  the  cestui  que  trust  in  real  estate 

escheats. 
§  437.     So  it  does  in  England  and  the  United  States  in  personalty. 
§  437  a.     Cuiitracts  of  trustee. 
§  437  I.      Signature  of  trustee. 

§  401.  A  TRUSTEE,  having  accepted  a  trust,  cannot  re- 
nounce it.  If  any  one  undertakes  an  office  for  another,  he 
is  bound  to  discharge  its  duties,  and  he  cannot  free  himself 
from  liability  by  mere  renunciation.  He  must  be  discharged 
]jy  a  court  of  equity,  or  by  a  special  power  in  the  instrument 
of  trust,  or  by  the  consent  of  all  parties  interested  in  the 
estate,  if  they  are  sui  juris:  if  all  the  parties  are  not  sui 
juris,  recourse  must  be  had  to  a  court  of  equity,  in  the 
absence  of  any  provisions  in  the  instrument  of  trust.^(a) 
Nor  can  a  party  qualify  his  own  acts.  Where  he  is  named 
trustee  or  executor,  and  acts  in  behalf  of  certain  parties  in 
the  management  of  the  estate,  he  cannot  protest  that  he  is 
not  acting  generally,  and  that  he  will  not  be  responsible  for 
any  mismanagement.  On  the  contrary,  if  he  so  acts,  and 
his  coexccutors  accept  the  trust,  and  commit  a  devastavit, 
he  will  1)C  equally  responsible.^  Even  if  a  trustee  gives  a 
bond  for  the  due  execution  of  the  trust,  and  in  a  suit  upon 

1  Post,  §§  920-922;  Doyle  v.  Blake,  2  Sch.  &  Lef.  245;  Chalmer  v. 
Bradly,  1  J.  &  AV.  68 ;  Read  v.  Truelove,  Amb.  417 ;  Manson  v.  Baillie, 
2  ]\Iacq.  II.  L.  Cas.  80;  Switzer  v.  Skiles,  3  Gilm.  (111.)  529;  Diefendorf 
r.  Spraker,  6  Seld.  246;  .Shepherd  r.  McEvers,  4  Johns.  Ch.  136;  Matter 
of  Jones,  4  Saiidf.  615;  Cruger  r.  Ilalliday,  11  Paige,  314;  Courtenay  r. 
Courtenay,  3  Jo.  &  Lat.  529. 

2  Lowry  r.  Fulton,  9  Sim.  123  ;  Doyle  v.  Blake,  2  Sch.  &  Lef.  231  ; 
Read  v.  Truelove,  Amb.  417  ;  Urch  v.  "Walker,  3  Myl.  &  Cr.  702 ;  Van  Iloru 
t;.  Fonda,  5  Johns.  Ch.  403. 

(a)  Speakman  v.  Tutem,  4S  N.  J.  F.q.  136. 

571 


§  402.]  GENERAL   DUTIES   OF   TRUSTEES,  [CHAP.   XIV. 

the  bond  is  obliged  to  pay  the  full  amount,  he  is  not  dis- 
charged from  the  trust,  nor  does  the  trust  property  vest  in 
him  beneficially.  He  is  still  a  trustee,  and  must  account 
for  the  trust  property,  and  all  the  income  and  profits.  Courts 
of  equity,  however,  in  such  cases  have  power  to  do  equity ; 
and  the  trustee  would  not  be  ordered  to  convey  the  trust 
property  without  repayment  to  him  of  the  money  paid  out  on 
his  bond.^  Until  the  trustee  has  been  discharged,  the  cestui 
que  trust  may  require  the  due  execution  of  the  trust;  and 
where  the  trustee  will  not  take  proper  steps  to  enforce  a 
claim  against  a  debtor,  he  may  file  a  bill  -against  the  trustee 
for  the  execution  of  the  trust  and  to  obtain  the  proper  order 
for  using  the  trustee's  name  or  for  obtaining  a  receiver  to 
use  the  trustee's  name.^  Trustees  will  be  held  to  great 
strictness  in  their  dealings  with  the  estate,  but  courts  will 
treat  them  leniently  when  they  act  in  good  faith.  ^  A  trustee 
is  bound  to  exercise  ordinary  care  and  judgment,  and  it  is  no 
excuse  for  him  that  he  did  not  possess  them ;  by  accepting  a 
trust,  whether  gratuitous  or  not,  he  undertakes  that  he  does 
possess  and  will  exercise  them.^  (a) 

§  402.    The  office  of  trustee  is  one  of  personal  confidence, 
and  cannot  be  delegated.     If  a  person  takes  upon  himself  the 

^  Moorcroft  v.  Dowding,  2  P.  Wms.  314.     See  Barker  v.  Barker,  14 
Wis.  131;  Saunders  v.  Webber,  39  Cal.  287, 

2  Sharps  v.  San  P.  Ry.  Co.,  L.  R,  8  Ch.  597. 

3  Crabb  v.  Young,  92  N.  Y.  56. 

4  Hun  V.  Gary,  82  N.  Y.  65. 

(a)  "  Trustees  are  not  bound  to  of  the  court  upon  points  of  minor 

do  anything  dishonest  or  immoral  importance  in  the  management  of 

for  the    sake    of    their   cestuis  que  the  trust  estate.     In    re   Tyrrell's 

trust."     Per  Kekewich,  J.,  in  Bud-  Trusts,  23  L.  R.  Ir.   263. 
gett  V.  Budgett,  [1895]  1  Ch.  202,  A  court  of  equity  will  not  ad- 

215.  vise  a  trustee  upon  speculative  ques- 

In  England,    §    30   of   Lord    St.  tions,  or  those  relating  to  his  future 

Leonard's    Act  (22  &  23  Vict.  ch.  duties.    Whiter.  Massachusetts In- 

30),  enabling  trustees  to  obtain  the  stitute  of  Technology,  171  Mass.  84; 

advice  or  direction  of  the  court  of  Quincy  u.  Att.  Gen.,  160  Mass.  431, 

chancery,  does   not  relate    to   nice  437;    O'Caia  v.   O'Cain,  51  S.    C. 

questions  of  law,  but  was  intended  348. 
to  procure  for  trustees  the  assistance 
572 


CHAP.    XIV.]  DELEGATION    OF    AUTHORITY.  [§  402. 

management  of  property  for  the  benefit  of  another,  he  has  no 
right  to  imj)usc  tliat  duty  on  others,  and  if  he  does  he  will 
be  responsible  to  the  ceatui  que  trust,  to  whom  he  owes  the 
duty.^  Therefore,  if  a  trustee  confides  his  duties  or  the  trust 
fund  to  the  care  of  a  stranger,^  or  to  his  attorney,^  or  even 
to  his  cotrustee  or  coexecutor,*  he  will  be  personally  respon- 
sible. J>ut,  before  this  responsibility  can  arise,  the  trustee 
must  have  accepted  the  office.  Where  a  person  named  exec- 
utor received  a  bill  by  post,  and  passed  it  over  to  a  co- 
executor  who  had  accepted  the  trust,  it  was  held  that  the  act 
might  be  considered  as  the  act  of  a  stranger,  and  did  not 
impose  any  responsibility.^  So  where  a  coexecutor  collected 
money,  and  paid  it  to  a  banker,  who  was  also  his  coexecutor, 
and  whom  the  testator  employed  as  his  banker,  he  was  held 
excused  for  trusting  the  same  person  as  his  coexecutor  whom 
the  testator  trusted  as  his  banker. ° 

^  Turner  v.  Corney,  5  Beav.  517  ;  Taylor  i\  Hopkins,  41  111.  442. 

2  Adams  r.  Clifton,  1  Russ.  297;  Kilbee  v.  Sneyd,  2  Moll.  199  ;  Ilard- 
wick  V.  Mynd,  1  Anst.  109;  Ycnables  v.  Foyle,  1  Ch.  Cas.  2;  Douglass 
V.  Browne,  Mont.  93 ;  Ex  parte  Booth,  id.  248 ;  Walker  v.  Symoiids,  3 
Swanst.  79,  n.  (a) ;  Char.  Corp.  v.  Sutton,  2  Atk.  405 ;  Wilkinson  v.  Parry, 
4  Iluss.  272;  llulme  v.  Ilulme,  2  Myl.  &  K.  682;  Black  v.  Irwin,  Harp.  L. 
411;  Berger  i'.  Duff,  4  Johns.  Ch.  368;  Pearson  v.  Jamison,  1  McLean, 
199;  Newton  v.  Bronson,  3  Kern.  587;  Andrew  v.  N.  Y.  Bible  Soc,  4 
Sandf.  156;  Nilesv.  Stevens,  4  Denio,  399;  Beekman  v.  Bonsor,  23  N.  Y. 
298  ;  Whittlesey  v.  Hughes,  39  Mo.  13 ;  Graham  v.  King,  50  :\Io.  22  ; 
Howard  v.  Thornton,  id.  291;  Bales  v.  Perry,  51  Mo.  449. 

8  Chambers  v.  Minchin,  7  Yes.  196;  Griffiths  v.  Porter,  25  Beav.  236  ; 
Ingle  V.  Patridge,  32  Beav.  661 ;  34  Beav.  411;  Bostock  v.  Floyer,  L.  R. 
1  Ch.  26;  Ex  parte  Townsend,  1  Moll.  139  ;  Ghost  v.  Waller,  9  Beav.  497; 
Turner  v.  Corney,  5  Beav.  115 ;  Sinclair  v.  Jackson,  8  Cow.  582. 

*  Langford  v.  Gascoyne,  11  Yes.  333;  Clough  v.  Bond,  3  Myl.  &  Cr. 
497  ;  Eaves  r.  Ilickson,  30  Beav.  136 ;  Davis  r.  Spurling,  1  R,  &  M.  66  ; 
Anon.,  Mos.  35,  36  ;  Harrison  v.  Graham,  1  P.  Wms.  241,  n.  (y) ;  Kilbee 
V.  Sneyd,  2  !Moll.  200 ;  Marriott  v.  Kinuersley,  Tam.  470 ;  Thompson  v. 
Finch,  22  Beav.  316  ;  8  De  G.,  M.  &  G.  560  ;  Dines  r.  Scott,  T.  &  R.  361 ; 
Cowell  V.  Gatcombe,  27  Beav.  568;  Trutch  r.  Lamprell,  20  Beav.  116; 
Ex  parte  Winuall,  3  D.  &  C.  22  ;  Berger  v.  Duff,  4  Johns.  Ch.  368. 

6  Balchen  v.  Scott,  2  Yes.  Jr.  678. 

«  Churchill  v.  Ilobson,  1  P.  Wms.  241 ;  Chambers  r.  Minchin,  7  Yes. 
198.    And  see  1  P.  Wms.  241,  n.  (y). 

573 


§  404.]  GENERAL   DUTIES    OF   TRUSTEES.  [CHAP.    XIV. 

§  403.  So  trustees  are  not  responsible,  if  they  follow  the 
directions  of  the  settlor.  Thus,  where  a  testator  recom- 
mended his  executors  to  employ  a  person  who  had  been  his 
own  agent  and  clerk,  and  they  employed  him  to  collect 
moneys,  and  he  became  insolvent,  it  was  held  that,  as  the 
testator  pointed  out  the  agent  to  whom  certain  business 
might  be  delegated,  the  executors  were  not  liable  for  the 
loss,  if  they  used  due  diligence  to  recover  the  money. ^  So  if 
an  executor  pays  over  money  which  he  has  no  right  to  retain. 
Thus  a  testator  appointed  A.,  B.,  and  C.  his  executors,  and 
authorized  A.  to  sell  real  estate  for  certain  purposes.  A. 
employed  B.  as  his  agent  to  sell  the  real  estate ;  B.  sold  the 
estate  and  paid  the  money  over  to  A.,  who  misapplied  it;  and 
it  was  held  that  B.  received  the  money,  not  as  executor,  but 
as  agent  of  A.,  and  as  A.  had  authority  to  sell,  he  had  a 
right  to  the  money,  and  that  B.  could  not  retain  it,  and  was 
not  responsible  for  it.^ 

§  404.  But  there  are  circumstances  where  the  trustees 
must  employ  agents,  (a)  Lord  Hardwicke  said  :  "  There  are 
two  sorts  of  necessity,  legal  necessity  and  moral  necessity. 
As  to  the  first  a  distinction  prevails.  Where  two  executors 
join  in  giving  a  discharge  for  money,  and  only  one  of  them 
receives  it,  they  are  both  answerable  for  it;  because  there  is 
no  necessity  for  both  to  join  in  the  discharge,  the  receipt  of 
either  being  sufficient;  but  if  trustees  join  in  giving  a  dis- 
charge and  one  receives,  the  other  is  not  answerable,  because 
his  joining  in  the  discharge  was  necessary.  3Ioral  necessity 
is  from  the  usage  of  mankind,  if  the  trustee  acts  prudently 
for  the  trust,  as  he  would  have  done  for  himself,  '  and  accord- 
ing to  the  usage  of  business  ; '  as  if  a  trustee  appoint  rents  to 
be  paid  to  a  banker  at  that  time  in  credit,  but  who  after- 
wards breaks,   the   trustee    is   not  answerable.     So   in   the 

1  Kilbee  v.  Sneyd,  2  INIoll.  199  ;  Doyle  v.  Blake,  2  Sch.  &  Lef.  239. 

2  Davis  V.  Spurliug,  1  R.  &  M.  64 ;  f  am.  199 ;  Keane  v.  Roberts,  4  Madd. 
332,  356 ;  Crisp  v.  Spranger,  Xels.  109. 

(a)  See  supra,  §  246,  note. 
574 


CHAP.    XIV.]  DELEGATIOX    OF   AUTHORITY.  [§  404. 

employment  of  stewards  and  agents;  for  none  of  these  cases 
are  on  account  of  necessity,  but  because  the  persons  acted  in 
tlic  usual  method  of  business. "  '  Other  cases  have  held  that 
"necessity  includes  the  usual  course  of  business, "^  as  in 
employing  a  broker  in  making  investments  of  a  class  usually 
so  made."*  But  the  agent  must  not  be  employed  out  of  the 
scope  of  his  regular  business.*  Where  an  executor  in  London 
remitted  money  to  an  executor  in  the  country  to  pay  debts 
there  due,  it  was  held  to  be  a  necessary  transaction  in  the 
course  of  business,  and  the  executor  in  London  was  not 
responsible  for  the  loss  of  the  money  by  his  coexecutor  in 
the  country.^  So,  where  A.  and  B.  were  assignees  of  a 
bankrupt,  and  A.  signed  dividend  checks  and  delivered  them 
to  B.  for  his  signature,  and  for  delivery  to  the  creditors,  and 
they  were  stolen  from  B.  and  negotiated  at  the  bank,  it  was 
held  that  A.  was  not  responsible  for  the  loss,  as  he  had  dele- 
gated the  checks  to  B.  in  the  necessary  course  of  the  busi- 
ness.^ So  a  trustee  is  not  called  upon,  in  the  ordinary  course 
of  business,  to  take  security  from  the  agent  or  other  person 
whom  he  employs.'  One  trustee  may  employ  his  cotrustee 
as  his  agent,  or  one  trustee  may  act  for  the  whole,  within 
the  scope  of  those  duties  where  an  agent  may  be  employed,  ^(a) 

^  Ex  parte  Belchier,  Amb.  219. 

2  Bacon  v.  Bacon,  5  Ves.  335  ;  Clough  v.  Bond,  3  Myl.  &  Cr.  497 ;  Joy  v. 
Campbell,  1  Sch.  &  Lef .  341 ;  Chambers  v.  Minchiu,  7  Ves.  193  ;  Langford 
V.  Gascoyne,  11  Yes.  33.5;  Davis  v.  Spurling,  1  R.  &  M.  6G;  Muuch  r. 
Cockerell,  5  Myl.  &  Cr.  211  ;  Ilawley  v.  James,  5  Paige,  487;  May  v.  Frazer, 
4  Litt.  391 ;  Telford  v.  Barney,  1  G.  Greene  (Iowa),  575 ;  Blight  v.  Schenck, 
10  Barr.  285 ;  Lewis  v.  Reed,  11  Ind.  239 ;  Mason  v.  Wait,  4  Scam.  132. 

8  Speight  V.  Gaunt,  22  Ch.  D.  727. 

*  Fry  V.  Tapson,  28  Ch.  D.  2G8. 

^  .Joy  V.  Campbell,  1  Sch.  &  Lef.  341 ;  Barrings  v.  Willing,  4  Wash. 
C.  C.  251 ;  Jones's  App.,  8  Watts  &  S.  147 ;  State  v.  Guilford,  15  Ohio,  593  ; 
Deaderick  v.  Cantrell,  10  Yerg.  251 ;  Thomas  v.  Scruggs,  id.  401 ;  Mac- 
cubbin  v.  Cromwell,  7  G.  &  J.  157. 

6  Ex  parte  Griffin,  2  G.  &  J.  114;  Wackerbath  v.  Powell,  Buck,  495; 
2  G.  &  J.  151.  '  Ex  parte  Belchier,  Amb.  220. 

8  Ex  parte  Rigby,  19  Ves.  463;  Abbott  v.  American  Hard  Rubber  Co., 

(a)  If  a  testator  empowers  his  estate  who  may  be  one  of  them- 
trustees  to  appoint  a  factor  tu  the    selves,  but  directs  them  to  require 

575 


§  407.]  GENEllAL   DUTIES   OF   TRUSTEES.  [CHAP.    XIV. 

§  405.  It  was  hold  in  one  case,  that  assignees  were  re- 
sponsible for  the  loss  of  money  by  an  attorney  employed  by 
them  to  collect  debts  due  the  estate,  on  the  ground  that 
there  was  no  necessity  for  them  to  allow  the  attorney  to  re- 
ceive a  shilling  of  the  money  except  the  costs,  as  he  could 
not  give  a  valid  receipt  for  the  same;^  and  Lord  Eldon  was 
cited  as  an  authority  for  this.  Mr.  Lewin  questions  this 
case,  and  says  that  trustees  must  not  allow  money  to  remain 
in  the  hands  of  an  attorney,  but  that  the  authorities  are 
doubtful  which  say  that  money  may  not  pass  through  the 
hands  of  an  attorney  in  the  ordinary  course  of  business. 
The  case  is  authority,  however,  thus  far,  that  attorneys  can- 
not sign  receipts  for  trustees,  and  if  they  authorize  them  so 
to  do,  the  trustees  will  be  responsible  as  for  the  acts  of  an 
agent  improperly  appointed.  ^ 

§  40G.  If  money  is  to  be  transmitted  to  a  distant  place,  a 
trustee  may  do  so  through  the  medium  of  a  responsible  bank, 
or  he  may  take  bills  from  persons  of  undoubted  credit,  pay- 
able at  the  place  where  the  money  is  to  be  sent;  but  the  bills 
must  be  taken  to  him  as  trustee :  if  he  neglects  these  precau- 
tions he  will  be  responsible  for  any  loss.^ 

§  407.  It  is  said  that  there  is  a  difference  in  the  rule,  as 
applied  to  executors  in  a  court  of  law  and  a  court  of  equity. 
Thus,  in  a  court  of  law,  an  executor  will  be  charged  with  all 

33  Barb.  579  ;  Sinclair  v.  Jackson,  8  Cow.  543  ;  Webb  v.  Ledsom,  1  K.  & 
J.  385 ;  Leggett  v.  Hunter,  19  N.  Y.  445 ;  Bowers  v.  Seeger,  3  AVatts  &  S. 
222. 

1  Ex  parte  Townsend,  1  Moll.  149;  Anon.  12  ]Mod.  560;  Re  Fryer,  3 
K.  &  J.  317. 

2  Lewin  on  Trusts,  208. 

3  Wren  v.  Kirton,  11  Ves.  380  ;  Ex  parte  Belchier,  219;  Bouth  v.  Howell, 
3  Ves.  566;  Massey  v.  Banner,  1  J.  &  W.  247;  Knight  v.  Plymouth,  1 
Dick.  120;  3  Atk.  480. 

annual   accounts,  the  trustees    are    ruthers  v.  Carruthers,  [1896]  A.  C. 
guilty  of  gross  negligence  if  they    659. 
do  not  call  for  such  accounts.     Car- 
576 


CHAP.    XIV.]  CANNOT    DiaEOATE    THE   TRUST.  [§  408. 

tlic  assets  that  come  to  his  hands  to  be  a(lininistere<],  and  he 
must  discharge  liimself  hy  showing  a  legal  administration  of 
all  of  them  ;  and  he  cannot  discharge  himself  at  law  by  show- 
ing that  he  intrusted  them  to  another  in  the  ordinary  course 
of  business;  that  he  used  due  caution  and  prudence,  and  re- 
posed a  reasonable  confidence  in  such  other  person;  and  that 
the  assets  were  lost  without  negligence  or  default  on  his 
part.  Such  a  state  of  facts  would  not  sustain  a  plea  of  jd'ne 
administravit  in  a  court  of  law.  But  a  court  of  equity  would 
adjust  the  account  of  the  executor  upon  equitable  i)rinci]>les.  ^ 
A  court  of  probate,  in  taking  the  account,  would  also  act 
upon  equitable  principles. ^ 

§  408.  If  a  trust  is  of  a  discretionary  nature,  the  trustee 
will  be  responsible  for  all  the  mischievous  consequences  of 
the  delegation,  and  the  exercise  of  the  discretion  will  be 
absolutely  void  in  the  substitute.' (a)  Nor  can  a  fZwcretww- 
ary  trust  be  delegated  to  a  cotrustee.*  "Where  a  sum  of 
money  was  given  to  three  trustees  to  be  distributed  in  char- 
ity in  their  discretion,  and  they  divided  it  into  three  parts, 
and  each  took  control  of  a  third.  Lord  Ilardwicke  said:  "I 
am  of  opinion  that  the  trustees  could  not  divide  the  charity 
into  three  parts,  and  each  trustee  nominate  a  third  al)SO- 
lutely,  because  the  determination  of  the  propriety  of  every 

1  Cross  t;.  Smith,  7  East,  240;  Jones  v.  Lewis,  2  Yes.  241;  Poole  v. 
Munduy,  103  Mass.  174 ;  Upson  v.  Badeau,  3  Bradf.  Sur.  13. 

2  Ibid. 

«  Alexander  r.  Alexander,  2  Ves.  643;  Att.  Gen.  r.  Scott,  1  Yes.  413; 
Wilson  I'.  Dennison,  Arab.  82  ;  7  Bro.  P.  C.  296;  Bradford  v.  Belfield,  2 
Sim.  264;  Hitch  v.  Leworthy,  2  Hare,  200;  Doe  v.  Robinson,  24  Miss. 
688;  Singleton  v.  Scott,  11  Iowa,  589;  Pearson  v.  Jamison,  3  McLean,  09, 
197. 

*  Crewe  v.  Dicken,  4  Yes.  97. 

(a)  A  power  of  appointment  can-  Lindley  (N.  J.  Eq.).  30   Atl.   Rep. 

not  be  delegated.     Hood  r.  Haden,  1063;  54  N.  J.  Eq.  418;  Bradford 

82  Ya.   588;  snpra,  §  287.     Discre-  v.  Monks,  132  Mass.  405;  Sinilh  v. 

tionary   powers    can   be    delegated  Swan,  2  Tex.  Civ.  App.  503  :  Wliit- 

only  as  to  details  not  requiring  the  lock  r.   Washburn,    62    Hun.  309; 

exercise    of    discretion.      Keim    i'.  Wilson  r.  Mason,  158  III.  304,  313. 
VOL.  I.  —  37  577 


§  411.]  GENEEAL   DUTIES    OF   TKUSTEES.  [CIIAP.    XIV. 

object  was  left  by  tbe  testator  to  the  discretion  of  all  the 
executors. "  ^ 

§  409.  But  it  must  be  observed  that  the  appointment  of  an 
attorney,  i)roxy,  or  agent  is  not  necessarily  a  delegation  of 
the  trust.  The  trustee  must  act  at  times  through  attorneys 
or  agents,  and  if  he  determines  in  his  own  mind  how  to  exer- 
cise the  discretion,  and  appoints  agents  or  instruments  to 
carry  out  his  determination,  he  cannot  be  said  to  delegate 
the  trust,  even  though  deeds  or  other  instruments  are  signed 
by  attorneys  in  his  name,  (a)  So,  if  he  gives  instructions  to 
his  attorneys  and  agents  how  to  act,  it  cannot  be  said  to  be 
a  delegation  of  the  trust.  ^ 

§  410.  It  has  been  before  stated  that  a  sale  or  devise  of 
the  trust  estate  by  the  trustee  will  not  be  a  delegation  or 
communication  of  a  discretionary  trust  to  the  vendee  or 
devisee,  unless  the  original  instrument  of  trust  contem- 
plated and  authorized  such  an  act  by  vesting  the  trust  or 
power  annexed  to  the  estate  in  the  trustee  and  his  assigns 
or  devisees.^ 

§  411.  Where  a  settlor  vests  his  property  in  several  co- 
trustees, they  all  form,  as  it  were,  one  collective  trustee ;  there- 
fore they  must  perform  their  duties  in  their  joint  capacity,* 

1  Att.  Gen.  v.  G\eg,  1  Atk.  356  ;  ante,  §  287. 

2  Att.  Gen.  v.  Scott,  1  Ves.  413;  Ex  parte  Rigby,  19  Yes.  463;  Ord 
r.  Noel,  5  Madd.  498 ;  Sinclair  v.  Jackson,  8  Cow.  582  ;  Ilawley  v.  James, 
5  Paige,  487;  Newton  v.  Bronson,  3  Kern.  587;  Blight  w.  Schenck,  lOBarr, 
285;  Ex  parte  Belchier,  Amb.  219;  Bacon  v.  Bacon,  5  Ves.  335;  Clough 
r.  Bond,  3  Myl.  &  Cr.  497  ;  Lewis  v.  Reed,  11  Ind.  239  ;  Mason  v.  Wait, 
4  Scam.  132;  Powell  v.  Tuttle,  3  Comst.  396;  Bales  v.  Perry,  51  Mo.  449. 

3  Ante,  §  340;  Saunders  v.  Webber,  39  Cal.  287. 

*  Smith  V.  Wildman,  37  Conn.  384;  White  v.  Watkins,  23  Mo.  423  ; 
Ex  parte  Griffin,  5  G.  &  J.  116  ;  Shook  v.  Shook,  19  Barb.  653  ;  De  Peys- 
ter  V.  Ferrers,  11  Paige,  13;  Franklin  v.  Osgood,  14  Johns.  560;  Cox  i-. 

(a)  A  trustee  may  employ  brok-    of  business.     Speight  v.   Gaunt,    9 
ers  and  agents  in  cases  where  they    A.  C.  1  ;  22  Ch.  D.  727. 
are  employed  in  the  ordinary  course 

578 


CHAP.    XIV.]  CANNOT    DF:LEGATK    THE    TRUST.  [§  412. 

even  in  making  a  purchase.*  In  law  there  is  no  such 
person  known  as  an  acting  trustee  apart  from  his  cotrustees. 
All  who  accept  the  office  are  acting  trustees.  If  any  one 
trustee  who  has  accepted,  refu.ses  to  join  in  the  projjosed  act, 
or  is  incapable,  the  others  cannot  proceed  without  him,  but 
an  application  must  be  made  to  the  court.2(a)  So,  if  trus- 
tees bring  suits,  or  defend  suits  in  court,  thcv  must  act 
jointly,  {h)  and  they  should  all  employ  the  same  counsel.  If 
they  sever  in  their  defence  and  incur  extra  costs,  they  might 
be  compelled  to  bear  them  personally. 

§  412.  A  receipt  for  mone}^  in  the  absence  of  special 
directions  in  the  instrument  of  trust,  must  be  signed  by  all 

Walker,  26  Maine,  501 ;  Hill  v.  Josselyn,  13  Sin.  &  M.  597 ;  Crewe  v.  Dicken, 
4  Ves.  97;  Fellows  v.  Mitchell,  1  P.  Wms.  83 ;  2  Vern.  516;  Churchill  v. 
Ilobson,  id.  241  ;  Chambers  v.  Minchin,  7  Ves.  198;  Leigh  c.  Barry,  3 
Atk.  584;  Belchier  r.  Parsons,  Amb.  219;  Ex  parte  Rigby.  19  Ves.  463  ; 
Webb  V.  Ledsain,  1  K.  &  J.  385 ;  Latrobe  r.  Tiernau,  2  Md.  Ch.  480 ; 
Vandever's  App.,  8  Watts  &  S.  405;  Sinclair  c.  Jackson,  8  Cow.  544; 
Ridgeley  v.  Johnson,  11  Barb.  527;  Austin  r.  Shaw,  10  Allen,  552;  King 
r.  Stone,  6  Johns.  Ch.  323 ;  Powell  v.  Tuttle,  3  Comst.  396  ;  Sherwood  v. 
Read,  7  Hill.  431. 

1  Holcomb  V.  Hnlcomb,  3  Stockt.  281. 

2  Smith  V.  Wildman,  37  Conn.  3S4  ;  Doyley  v.  Sherratt,  2  Eq.  Cas.  Ab. 
742;  Re  Cong.  Church  v.  Smithwick,  1  W.  N.  196  ;  Scruggs  i-.  Driver,  31 
Ala.  274  ;  Matter  of  Wadsworth,  2  Barb.  Ch.  381  ;  Matter  of  Mechanics' 
Bank,  id.  446  ;  Burrill  v.  Shell,  2  Barb.  457  ;  Wood  i'.  Wood,  5  Paige,  596; 
Davis  r.  McNeil,  1  Ired.  Eq.  344  ;  Matter  of  Van  Wyke,  1  Barb.  Ch.  565; 
Guyton  v.  Shane,  7  Dana,  498  ;  Ridgeley  i-.  Johnson,  11  Barb.  527  ;  Ex 
parte  Belchier,  Amb.  219. 

(n)  See  Allen's  Appeal,  69  Conn,  ent  persons,  they  should  all  join  in 

702;    Wheeler's   .\ppeal,   70  Conn,  selling.     Poole  »'.  Anderson,  ^0  Md. 

511 ;  Tarlton  r.  Gilsey  (N.  J.  f^q.),  454.     If  several  executors  have  as 

37  Atl.  467;  Pladley  v.  Hadley,  147  such  a  joint  power  to  sell,  and  one 

Ind.  423 ;  Duckworth  v.   Ocean  S.  of  them   is  disqualified,  the  others 

Co.,  98  Ga.  193;  Hunter  r.  Anderson,  may  act  in  the  matter.     Lippincott 

152Penn.  St.  386;  1  Ames  on  Trusts  r.  WikofF.  .i4  N.  J.   Eq.    107.     See 

(2d  eil.),  512,  n.     When   a  will  de-  Carr  r.  Hertz,  id.  127.  700. 
vises  property,  with  power  of  sale,  to  {h)  Mc(ieorge    v.    Bigstone    Gap 

executors  or  trustees  who  are  differ-  Imp.  Co  ,  88  F.  R.  599. 

579 


§  412.]  GENERAL   DUTIES    OF   TRUSTEES.  [CHAP.    XIV. 

the  trustees,  or  it  will  be  invalid.^  Where  the  trustees  are 
numerous,  the  court  generally  inserts  an  order  that  moneys 
may  be  paid  to  two  or  more.'"^  This  rule  is,  however,  relaxed 
in  the  United  States ;  and  it  has  been  held  that  payment  of  a 
mortgage  to  one  of  two  trustees  is  a  valid  payment.^  So  all 
the  trustees  must  join  in  proving  a  debt  against  a  bankrupt;* 
but,  under  special  circumstances,  the  court  may  order  the 
proof  to  be  made  by  one  or  more,  even  when  payment  must 
be  made  to  all  the  trustees.^  A  different  rule  prevails  in 
regard  to  bank  stocks,  for  the  bank  recognizes  only  the  legal 
title,  and  at  law  one  joint-tenant  may  receive  moneys ;  so 
one  trustee  may  receive  dividends  upon  public  stocks,^  or  the 
rents  of  real  estate,  unless  the  tenant  has  had  notice  not  to 
pay  to  one;''  but  all  the  trustees  must  join  in  conveying  such 
stocks  or  in  executing  a  conveyance  of  land,^  or  pledging  the 
trust  property.^  A  deed  of  land  executed  by  one  trustee  does 
not  convey  his  share,  as  in  the  case  of  ordinary  joint-tenants.^® 
Where  a  deed  was  executed  by  two  of  three  trustees,  the  bur- 
den was  put  upon  the  purchaser  to  prove  that  the  other  trus- 
tee was  dead.^^  It  has  been  said,  however,  that  in  a  case  of 
necessity,  and  after  considerable  time,  the  concurrence  of 
a  cotrustee  may  be  presumed  in  some  transactions.^^  A 
banker  may  require  checks  to  be  signed  by  one  only,  or  by 

1  Walker  v.  Symonds,  3  Swanst.  63 ;  Hall  v.  Fianck,  11  Beav.  519. 

2  Att.  Gen.  v.  Brickdale,  8  Beav.  228. 
8  Bowers  v.  Seeger,  8  Watts  &  S.  222. 

<  Ex  parte  Smith,  1  Dea.  191;  M.  &  A.  506  ;  Ex  parte  Phillips,  2  Dea. 
334. 

6  Ibid. 

«  Williams  v.  Nixon,  2  Beav.  472. 

■^  Williams  v.  Nixon,  2  Beav.  472;  Townley  v.  Sherborne,  Bridg.  35; 
Gouldsworth  v.  Knight,  11  M.  &  W.  337;  Husband  v.  Davis,  1  C.  B.  645. 
See  Webb  i:  Ledsam,  1  K.  &  J.  385 ;  Mendes  v.  Guedalla,  2  John.  &  H. 
259. 

8  Ibid. ;  Morville  v.  Fowle,  144  Mass.  109,  113. 

9  Ham  V.  Ham,  58  N.  H.  70. 

10  Sinclair  v.  Jackson,  8  Cow.  543. 

"  Ridgeley  v.  Johnson,  11  Barb.  527  ;  Learned  v.  Welton,  40  Cal.  339  ; 
Burngarner  v.  Coggswell,  49  Mo.  259. 
12  Vandever's  App.,  8  Watts  &  S.  405. 
580 


CHAP.   XIV.]  THE   TRUST   A   JOINT   OFFICE.  [§  413. 

all  the  trustees.  But  if  trustees  place  mouey  at  a  banker's 
in  such  manner  that  one  of  their  numV>er  can  withdraw  it  in 
his  sole  name,  all  the  trustees  will  be  liable  in  case  of  a  loss 
under  such  an  arrangement.^ 

§  413.  In  the  case  of  a  public  trust,  where  there  are 
several  trustees,  the  act  of  the  majority  is  held  to  be  the  act 
of  the  whole  number  ;2  but  tlio  act  of  the  majority  must  be 
strictly  within  the  sphere  of  their  power  and  duty.^  When  a 
special  power  is  given  to  trustees,  it  cannot  be  exercised  by 
a  majority  only:  all  must  join.*  If  a  settlement  declares, 
that,  on  the  death  or  resignation  of  a  trustee,  the  surviving 
trustees  shall  appoint  his  successor,  all  the  surviving  trustees 
must  join  in  the  appointment.^  Where  the  trustees  are 
numerous,  as  in  the  case  of  a  charity,  the  court  may  direct 
that  a  majority  shall  form  a  quorum.  Private  trusts,  where 
the  rule  prevails  that  all  must  join,  cannot  be  aftected  by 
these  principles,  or  by  any  agreements  that  may  be  made  by 
the  parties.^  But  an  instrument  of  trust  may  contain  express 
directions  that  the  trust  shall  be  administered  according  to 
the  will  of  the  majority  of  the  trustees,  in  which  case  the 
minority  will  be  compelled  to  give  effect  to  the  determina- 
tions of  the  majority.'^  So  if  the  power  is  given  to  either  of 
two  trustees.*  So  trustees  are  bound  to  concur  in  every 
merely  ministerial  act  necessary  for  the  execution  of  the 
trust ;  and  if  they  refuse,  they  may  be  compelled  by  order  of 
the  court.     But  where  it  is  a  mere  matter  of  personal  discre- 

1  Townley  v.  Sherborne,  Bridg.  35. 

2  Wilkinson  v.  Malin,  2  Tyr.  544  ;  Perry  v.  Shipway,  1  Gif.  1 ;  4  De  G. 
&  J.  353 ;  Att.  Gen.  v.  Shearman,  2  Beav.  104  ;  Att.  Gen.  v.  Cuming,  2 
Y.  &  C.  Ch.  139  ;  Younger  v.  VVelham,  3  Swanst.  ISO ;  Att.  Gen.  v.  Scott, 
1  Yes.  413;  Wilson  r.  Dennison,  Amb.  82. 

8  Ward  v.  Ilipwell,  3  Gif.  547;  Sloo  r.  Law,  3  Blatch.  60,  459. 
*  lie  Cong.  Church  v.  Smithwick,  1  W.  N.  19G. 
6  Ibid. 

«  Swale  V.  Swale,  22  Beav.  585;  State  v.  Lord,  31  L.  J.  Ch.  301. 
'Att.  Gen.   v.  Cuming,   2  Y.  &  C.  Ch.   139;    Taylor  v.   Dickinson,  15 
Iowa,  483. 

8  Taylor  v.  Dickinson,  15  Iowa,  486. 

581 


§  414.]  GENEKAL   DUTIES    OF   TRUSTEES.  [CHAP.    XIV. 

tion,  the  court  cannot  interfere,  unless  a  cotrustee  refuses  to 
act  from  a  corrui)t  or  selfish  motive.^  But  a  majority  of 
trustees  cannot  deprive  one  of  their  number  of  his  right  and 
interest  in  the  trust  property. ^ 

§  414.  A  bare  authority^  committed  to  several  persons, 
ceases  upon  the  death  of  one ;  but  if  the  authority  is  coupled 
with  an  interest,  it  passes  to  the  survivors.^ (a)  The  com- 
mittee of  a  lunatic's  estate  are  mere  protectors  without  any 
interest,  and  the  death  of  one  extinguishes  the  office.^  An 
executorship  survives,  for  the  joint  executors  have  an  interest 
in  the  estate.^  So  testamentary  guardianship  survives,  as 
such  guardians  have  an  authority  over  the  estate.^  So  co- 
trustees have  an  authority  coupled  with  an  interest  in  the 
legal  title  of  the  estate,  and  the  office  is  impressed  with  the 
quality  of  survivorship.'^  If  land  is  given  to  two  trustees  in 
trust  to  sell,  and  one  dies,  the  other  may  sell,  as  he  holds 
the  legal  title  in  the  land,  and  the  office  of  trustee.^     Other- 

1  Clarke  v.  Parker,  19  Ves.  1 ;  Tomlin  v.  Hatfield,  12  Sim.  167;  Goulds- 
worth  V.  Knight,  11  M.  &  W.  337;  Burrill  v.  Shell,  2  Barb.  457  ;  Matter  of 
Mechanics'  Bank,  id.  446. 

2  Meth.  Ep.  Church  v.  Stewart,  27  Barb.  553. 

3  Co.  Litt.  113  a;  Eyre  v.  Shaftsbury,  2  P.  Wms.  108,  121,  124;  Att. 
Gen.  r.  Gleg,  1  Atk.  356;  Amb.  584;  Mansell  v.  Vaughn,  Wilm.  49; 
Butler  V.  Bray,  Dyer,  189  b;  Peyton  v.  Bury,  2  P.  Wms.  628.    See  §  286. 

*  Ex  parte  Lyne,  t.  Talb.  143. 

6  Adams  v.  Buckland,  2  Vern.  514;  Hudson  c.  Hudson,  t.  Talb.  129. 

*  Eyre  v.  Shaftsbury,  2  P.  Wms.  102.  But  if  joint  guardians  are  ap- 
pointed by  the  court,  the  death  of  one  destroys  the  guardianship.  Brad- 
shaw  V.  Bradsliaw,  1  Russ.  528;  Hall  u.  Jones,  2  Sim.  41. 

^  Hudson  V.  Hudson,  t.  Talb.  129;  Co.  Litt.  113  a;  Att.  Gen.  w. 
Gleg,  Amb.  585;  Billingsley  v.  Mathew,  Toth.  168;  Gwilliams  v.  Rowell, 
Hard.  204;  Stewart  v.  Peters,  10  Mo.  755;  Butler  v.  Bray,  Dyer,  189  b; 
Dominick  v.  Sayre,  3  Sandf.  555  ;  Belmont  v.  O'Brien,  2  Kern.  394  ;  De 
Peyster  w.  Ferrers,  11  Paige,  13;  Moses  v.  Murgatroyd,  1  Johns.  Ch.  119; 
Shook  V.  Shook,  19  Barb.  653;  Gregg  v.  Currier,  36  X.  H.  200;  Powell 
V.  Knox,  16  Ala.  364  ;  Parsons  v.  Boyd,  20  Ala.  112;  Leggett  v.  Hunter, 
19  N.  Y.  445;  Aubuchon  v.  Lory,  23  Mo.  99;  Barton  v.  Tunnell,  5  Harr. 
182 ;  Smith  v.  McConnell,  17  111.  135  ;  Hopper  o.  Adee,  3  Duer,  235  ;  Brit- 
ton  V.  Lewis,  8  Rich.  Eq.  271. 

8  Warburton  v.  Sandys,  14  Sim.  622  ;  Watson  v.  Pearson,  2  Exch.  594; 
(a)  See  supra,  §  248,  n.  (a). 

.  582 


CHAP.    XIV.]  SURVIVOKSIIIP   OF   THK    TRUST.  [§  415. 

wise,  the  procnution  taken  by  a  settlor  to  guard  his  estate, 
by  increasing  the  number  of  trustees,  would  be  futile;  for 
the  death  of  one  of  them  might  result  in  defeating  his  whole 
trust.  Where  the  trust  was  to  raise  £2000  out  of  the  testa- 
tor's estate,  by  sale  or  otherwise  at  the  discretion  of  the 
trustees,  who  should  invest  the  same  in  their  own  names 
upon  trust,  one  of  the  trustees  died  and  the  other  sold;  and 
yice-Chancellor  Wood  held  that  the  survivor  could  make  a 
good  title.  He  said:  "I  find  a  clear  estate  in  the  vendor, 
and  a  clear  duty  to  ])erform.  Is  it  to  be  said  that  the  sale  is 
a  breach  of  trust,  because  the  cotrustee  is  dead?  If  I  were 
to  lay  down  such  a  rule,  it  would  come  to  this,  that  when  an 
estate  is  vested  in  two  or  more  trustees,  to  raise  a  sum  by 
sale  or  mortgage,  you  must  come  into  this  court  on  the  death 
of  one  of  the  trustees."  ^  The  survivorship  of  the  trust  will 
not  be  defeated,  because  the  settlement  contains  a  power  for 
restoring  the  original  number  of  trustees  by  new  appoint- 
ments,2  unless  there  is  something  in  the  instrument  that 
specially  manifests  such  an  intention.^  Where  an  act  of 
Parliament  declared  that  '"survivors  should,  and  they  were 
thereby  required  "  to  appoint  new  trustees,  the  court  expressed 
an  opinion  that  the  clause  was  not  imperative,  but  simply 
directory.* 

§  415.  The  general  rule  is,  that  one  trustee  shall  not  be 
responsible  or  liable  for  the  acts  or  defaults  of  his  cotrustee. 
This  rule  was  established  in  the  time  of  Charles  the  First, 
after  very  great  consideration  and  consultation  by  the  judges 
in  the  case  of  Townley  v.  Sherborne,^  wherein  it  was  resolved 

Att.  Gen.  v.  Litchfield,  5  Ves.  825;    Att.  Gen.  r.  Cuming,  2  Y.  &  C.  Ch. 
139;  Slater  v.  Wheeler,  9  Sim.  156. 

1  Lane  v.  Debenham,  11  Hare,  188;  Hind  v.  Poole,  1  K.  &  J.  383. 

2  Doe  V.  Godwin,  1  D.  &  R.  250;  Att.  Gen.  v.  Cuming,  2  Y.  &  C.  Ch. 
139;  Jacob  v.  Lucas,  1  Beav.  436;  Warburton  v.  Sandy.s,  14  Sim.  622; 
Hall  V.  Dewes,  Jac.  193;  Att.  Gen.  v.  Floyer,  2  Vern.  748;  Townseud  v. 
W'lhnn,  1  B.  &  A.  608. 

«  Foley  I'.  "Wontner,  2  J.  &  W.  245;  Jacob  v.  Lucas.  1  Bi-av.  436. 
*  Doe  r.  Godwin,  1  D.  &  K.  250.     And  see  Att.  Gen.  v.  Locke,  3  Atk. 
166;  Stamper  v.  Millar,  id.  212;  Rex  v.  Flockwood,  2  Chit.  2.52. 

6  Townley  v.  Slieiborne,  Bridg.  35;  3  Lead.  Cas.  Eq.  718,  and  notes; 

583 


§  415.]  GENERAL   DUTIES   OF   TRUSTEES  [CIIAP.    XIV. 

"that  where  lands  or  leases  were  conveyed  to  two  or  more 
upon  trust,  and  one  of  them  receives  all  or  the  most  part  of 
the  profits,  and  after  dyeth  or  decayeth  in  his  estate,  his 
cotrustee  shall  not  be  charged  or  be  compelled  in  chancery 
to  answer  for  the  receipts  of  hira  so  dying  or  decayed,  unless 
some  ])racticG,  fraud,  or  evil  dealing  appear  to  have  been  in 
them  to  prejudice  the  trust;  for  they  hein(j  hy  laiv  joint- 
tenants,  or  tenants  in  common,  every  one  by  law  may  receive 
either  all  or  as  much  of  the  profits  as  he  can  come  by ;  it  is 
no  breach  of  trust  to  permit  one  of  the  trustees  to  receive  all 
or  the  most  part  of  the  profits;  it  falling  out  many  times 
that  some  of  the  trustees  live  far  from  the  lands,  and  are  put 
in  trust  out  of  other  respects  than  to  be  troubled  with  the 
receipt  of  the  profits,  (a)  But  his  lordship  and  the  said 
judges  did  resolve,  that  if,  upon  the  proofs  or  circumstances, 
the  court  should  be  satisfied  that  there  had  been  any  dolus 
mains,  or  any  evil  practice,  fraud,  or  ill  intent  in  hira  that 
permitted  his  companion  to  receive  the  whole  profits,  he 
should  be  charged  though  he  received  nothing."  And  the 
same  doctrine  has  been  acted  upon  from  that  day  to  this.^ 
Connivance,  co-operation,  permission,  acquiescence,  or  par- 
ticipation will  bring  liability  ;2  and  ignorance  of  the  default 
of  a  cotrustee  if   it  results   from  neglect  is   no  excuse,  as 

Bowers  i;.  Seeger,  8  Watts  &  S.  222;  Sinclair  y.  Jackson,  8  Cow.  543; 
Vandever's  App.,  8  Watts  &  S.  405.  And  see  Leigh  v.  Barry,  3  Atk. 
584 ;  Anon.  12  Mod.  560 ;  Taylor  v.  Benham,  5  How.  233 ;  Ochiltree  v. 
Wright,  1  Dev.  &  B.  Eq.  336;  Ray  v.  Doughty,  4  Blackf.  115;  Jones's 
App.,  8  Watts  &  S.  143 ;  Peters  v.  Beverly,  10  Peters,  532  ;  1  How.  134; 
Taylor  y.  Roberts,  3  Ala.  86;  State  v.  Guilford,  18  Ohio,  509;  Latrobe  v. 
Tiernan,  2  Md.  Ch.  480;  Worth  v.  McAden,  Dev.  &B.  Eq.  109;  Boyd 
V.  Boyd,  3  Grat.  114;  Glenn  v.  McKim,  3  Gill,  366  ;  Stell's  App.,  10  Penn. 
St.  149;  Banks  v.  Wilkes,  3  Sandf.  Ch.  99.  And  see  Royall  v.  McKenzie, 
25  Ala.  363. 

1  Ibid. 

2  Ilinson  v.  Williamson,  74  Ala.  180;  Knight  i\  Haynie,  id.  542. 

(a)  SeeBrueniJ.  Gillet,  115N.  Y.  883;  Darnaby  v.   Watts   (Ky.),  21 

10;  Re  Blauvelt,  131   N.  Y.   249;  S.  W.  333;   Litzenberger's  Estate, 

Purdy  V.   Lynch,    145  N.  Y.    462;  33  N.  Y.  S.  155;  Cozzpns'  Estate, 

Fesmire's  Estate,  134  Penn.  St.  67;  15  id.  771 ;  Dyer  v.  Riley,  51  N.  J. 

Barroll  v.  Foreman  (Md.),  40  Atl.  Eq.  124. 
584 


CHAP.    XIV.]  WHKN    LIAI5LE    FOR    COTRUSTEES.  [§  416. 

where  one  trustee  collects  a  fund  and  keeps  it  without  rein- 
vestment, the  other  trustees  may  be  liable.^ 

§  41(>.  In  tlic  same  case  of  Townley  v.  Sherborne,  it  was 
determined  that  if  the  trustees  joined  in  signing  a  receipt 
for  money,  they  should  each  be  responsible  for  it.^  But 
where  the  administration  of  a  trust  is  vested  in  several  trus- 
tees, they  must  all  join  in  signing  a  receipt  for  the  prineij)al 
or  capital  sum  of  the  trust  fund,  and  it  is  now  established 
that  a  trustee  who  joins  in  the  receipt  for  conformity,  but 
without  receiving  any  of  the  money,  shall  not  be  answerable 
for  the  misapplication  of  the  money  by  his  cotrustee  who 
receives  it;  as  it  would  be  tyranny  to  punish  a  trustee  for 
an  act  which  the  nature  of  his  office  compelled  him  to  do.^ 
But  in  such  case  the  burden  is  on  the  trustee  to  prove  that 
his  acknowledgment  of  the  receipt  of  the  money  was  merely 
for  conformity,  and  that  in  fact  he  received  none  of  the 
money,  and  that  his  cotrustee  I'cceivcd  it  all.^     If  there  is 

1  Richards  v.  Seal,  2  Del.  Ch.  2G6. 

^  Townley  v.  Sherborne,  Bridg.  3.);  Spalding  v.  Shalmer,  1  Vern.  303; 
Sadler  v.  Hobbs,  2  Bro.  Ch.  114;  Bradwell  v.  Catchpole,  cited  3  Swanst. 
78,  note  (a)  ;  Fellowes  r.  Mitchell,  2  Vern.  516. 

8  7/1  re  Freyer,  3  K.  &  J.  317;  Brice  v.  Stokes,  11  Yes.  324;  3  Lead. 
Cas.  Eq.  730;  Harden  r.  Parsons,  1  Eden,  147;  "Westley  v.  Clarke,  id. 
359;  Ileaton  r.  Marriott,  cited  Vx.  Ch.  173  ;  iJx/iar^e Belch ier,  Anib.  219; 
Leigh  V.  Barry,  3  Atk.  584 ;  Fellowes  v.  Mitchell,  1  P.  Wms.  81 ;  Gregory 
r.  Gregory,  2Y.  &  C.  316  ;  Sadler  v.  Ilobbs,  2  Bro.  Ch.  117;  Chambers 
r.  ^Minchin,  7  Vos.  198;  Shipbrook  v.  Ilinchinbrook,  16  Yes.  479  ;  Harrison 
V.  Graham,  3  Hill's  MS.  239,  cited  1  P.  Wms.  241  ;  Carsey  v.  Barshara, 
cited  1  Sell.  &  Lef.  314;  Anon.  ]\Iose.  35  ;  Ex  parte  Wackerbatli,2  G.  &  J. 
151;  Kip  V.  Deniston,  4  Johns.  23;  Jones's  App.,  8  Watts  &  S.  147; 
Irwin's  App.,  35  Penn.  St.  204;  Sterrett's  App.,  2  Penn.  419;  Wallis  r. 
Thornton,  2  Brock.  434  ;  Monell  v.  Mouell,  5  Johns.  Ch.  283  ;  Deaderick 
V.  Cantrell,  10  Yerg.  264;  Aplyn  r.  Brewer,  Pr.  Ch.  172;  Chmchill  r. 
Ilodson,  1  r.  Wms.  211  ;  Att.  Gen.  v.  Randc'11,7  Bacon,  Ab.  184;  Murrell 
V.  Cox,  2  Yern.  173;  Terrell  r.  ISIathews,  11  L.  J.  (n.  s.)  Ch.  31  ;  Mc- 
Murray  v.  ^Montgomery,  2  Swanst.  374  ;  Griffin  r.  Macaulay,  7  Grat.  476; 
Worth  V.  IMcAden,  1  Dev.  &  B.  Eq.  199;  Stowe  v.  Bowen,  99  Mass.  194. 

*  Brice  v.  Stokes,  1 1  Yes.  324 ;  Scurfield  v.  Howes,  3  Bro.  Ch.  95,  note 
(S)  ;  Chanibers  r.  Minchin,  7  Yes.  186;  Monell  v.  :\Ionell,  5  Johns.  Ch. 
394;  Hall  r.  Carter,  8  Ga.  388;  Mauahau  v.   Gibbous,   19  Johns.  427; 

585 


§  417.]  GENERAL    DUTIES    OF    TRUSTEES.  [CHAP.    XIV. 

no  evidence  upon  this  })oint,  all  the  trustees  who  join  in 
signing  the  receipt  will  be  held  responsible  in  solido,  on  the 
ground  that  the  acknowledgment  in  the  receipt  is  prima  facie 
evidence  of  the  facts  stated.^  At  law  the  receipt  is  conclu- 
sive evidence  and  estops  the  trustee  from  denying  that  he 
received  any  of  the  money  ;2  but  a  court  of  equity  rejects 
estoppels,  and  pursues  the  actual  truth,  and  will  determine 
and  decree  according  to  the  verity  and  justice  of  the  fact.^ 
But  if  a  trustee,  signing  a  receipt,  receives  any  part  of  the 
money,  and  it  does  not  appear  how  much,  he  will  be  answer- 
able for  the  whole ;  as,  where  he  mixes  his  corn  with  an- 
other's heap,  he  must  lose  the  whole.* 

§  417.  It  was  said  in  Townley  v.  Sherborne,^  that  individ- 
uals are  sometimes  joined  in  a  trust,  where  it  is  not  expected 
that  they  are  to  take  an  active  part  in  its  management ;  and 
it  is  well  settled  that  each  of  several  trustees  is  not  bound  to 
take  upon  himself  the  active  management  of  every  part  of  a 
trust ;  and  it  seems  that  the  management  of  the  whole  may 
be  left  to  any  one  of  the  number.^  So  trustees  may  appor- 
tion their  duties  among  themselves,  as  where  one  of  two 
guardians  accepted  the  trust,  saying  he  would  take  care  of  the 
real  estate,  but  would  have  nothing  to  do  with  receiving  and 
disbursing  money,  which  duties  the  other  guardian  assumed, 
it  was  held  that  the  former  was  not  answerable  for  the  de- 
faults of  the  latter.''     It  sometimes  happens  that  the  conven- 

Martindale  v.  Picquot,  3  K.  &  J.  317 ;  Cottam  v.  Eastern  Counties  Ry. 
Co.,  1  John.  &  H.  243. 

1  Ibid.;  Westley  I'.  Clarke,  1  Eden,  3.59;  Maccubbin  v.  Cromwell,  7 
G.  &  J.  157  ;  Hengst's  App.,  21  Penn.  St.  413.  The  answer  of  tlie  trustee 
in  chancery  would  not  be  sufficient  evidence  unless  responsive  to  the  bill. 
Monell  V.  Monell,  5  Johns.  Ch.  283;  Maccubbin  v.  Cromwell,  7  Gl.  &  J. 
157.     But  as  parties  are  now  witnesses,  the  rule  is  not  very  important. 

2  Harden  v.  Parsons,  1  P^den,  147. 

8  Ibid.  ;  Fellowes  v.  [Mitchell,  1  P.  Wms.  83. 

4  Ibid.  5  Bridg.  35. 

6  Ray  I'.  Doughty,  4  Rlackf.  115;  Ochiltree  v.  Wright,  1  Dev.  &  B. 
Eq.  336  ;  State  v.  Guilford,  18  Ohio,  500. 

■^  Jones's  App.,  8  Walts  &  S.  143.  But  see  Gill  v.  Att.  Gen.,  Hardr. 
314. 

586 


CHAP.    XIV.]  WHEN    LIAIJLE    FOK    COTKU.STEES.  [§  -417. 

ience  or  ncccssitius  of  business  rcciiiire  the  trust  funds  to  be 
in  the  hands  of  one  trustee.  If  a  loss  happens  from  tlie  de- 
fault of  such  trustee,  tlie  others  will  not  be  huld  to  answer. 
As  where  a  bond  is  to  be  collected  by  one  trustee,  or  money 
is  put  in  the  hands  of  one  to  be  jtaid  away;  or  where  a  fund 
was  given  to  three  trustees,  one  in  London  and  two  in  Corn- 
wall, to  build  an  almshouse  in  London,  it  was  held  that  the 
fund  was  ])ropei-ly  in  the  hands  of  the  trustee  in  London,  and 
that  during  the  construction  of  the  almshouse  the  others 
were  not  answerable  for  the  loss  of  part  of  it  by  his  insol- 
vency.^ The  same  rule  applies  where  the  shai-es  of  a  c<jm- 
pany  are  required  to  be  in  the  name  of  a  single  individual  ;2 
and  so  where  the  settlor  appoints  one  of  the  trustees  to  per- 
form certain  acts,  or  make  certain  sales,  or  receive  certain 
moneys.^  But  if  trustees  expressly  agree  to  be  answeral)le 
for  each  other,  courts  will  hold  them  to  their  agreement.* 
So  this  powder  to  apportion  the  duties  of  the  trust,  or  the 
rule  that  a  trustee  not  receiving  the  money  shall  not  be  liable 
for  the  defaults  of  his  cotrustees,  docs  not  excuse  him  for 
not  exercising  a  general  superintendence  and  care  over  the 
trust,  or  for  not  intervening,  if  the  fact  come  to  his  knowl- 
edge that  the  fund  is  unsafe,  or  that  it  ought  not  longer  to 
remain  under  the  control  of  the  other  trustee.^  Even  a  direct 
provision  in  the  deed  of  settlement,  that  trustees  shall  not  be 
liable  for  the  defaults  of  their  cotrustees,  does  not  excuse 
them  from  this  general  care  and  superintendence,  and  from 
the  duty  of  intervening,  if  they  hear  any  fact  tending  to  call 

1  Att.  Gen.  v.  Randell,  2  Eq.  Cas.  Ab.  742;  7  Bacon,  Ab.  181;  Clough 
V.  Bond,  3  M.  &  Cr.  497;  Towiiley  v.  Sherborne,  Bridg.  3.");  3  Lead.  Cas. 
Eq.  718,  notes;  Ex  parte  Criffiii,  2  G.&  J.  Ill  ;  Bacon  v.  Bacon,  5  Ves. 
331;  Hovey  v.  Blakeniun,  4  id.  596;  Williams  v.  ^'ixon,  2  Beav.  472; 
Curtis  V.  Mason,  12  L.  J.  (x.  8.)  Ch.  442  ;  Broadhurst  v.  Balguy,  1  N.  C. 
C.  28  ;  Hanbury  v.  Kirkland,  3  Siui.  26").  But  see  Cowell  v.  Gatchcombe, 
27  Beav.  5G8. 

^  Consterdine  v.  Consterdine,  31  Beav.  3^1. 

8  Davis  V.  Spurling,  1  K.  &  M.  (M  ;  Paddon  v.  Ricbardson,  7  De  G.,  ]\I. 
&  G.  563;  Birls  v.  Betty,  6  Madd.  90. 

*  Leigh  ('.  Barry,  3  Atk.  583;  Brazer  v.  Clark,  5  Pick.  96  ;  Towne  r. 
Animidown,  2  Pick.  535. 

5  Claik  V.  Clark,  8  Paige,  153 ;  Evans's  Est,  2  Ash.  470. 

587 


§  418.]  GENERAL    DUTIES    OF   TRUSTEES.  [CHAP.    XIV. 

for  their  intervention;  nor  will  it  justify  them  in  paying 
over  the  money  to  the  sole  credit  of  one  trustee;  and  gener- 
ally it  will  not  authorize  them  to  do  any  acts  which  would 
be  a  breach  of  trust,  if  such  clause  was  not  in  the  deed  or 
will.i  While  one  trustee  is  not  liable  for  the  defaults  of 
cotrustees  which  he  has  not  the  means  of  preventing  or 
guarding  against,  yet  he  must  exercise  due  care  in  the  ap- 
proval of  or  acquiescence  in  the  acts  of  his  associates.^  If 
the  trustees  join  in  accounting,  and  hold  themselves  out,  in 
joint  accounts,  as  acting  together  and  as  jointly  liable,  they 
will  be  estopped  to  deny  their  joint  liability  to  those  who 
have  acted  on  a  knowledge  of  such  accounts ;  and  this  would 
be  almost  conclusive  evidence  of  a  joint  liability  in  all  cases. ^ 
So,  if  the  will  makes  them  all  liable  for  the  acts  of  each,  or 
contemplates  the  joint  action  and  joint  liability  of  all,  they 
cannot  excuse  themselves  if  they  accept  the  trust.* 

§  418.  Though  a  trustee  may  join  in  a  receipt  without 
receiving  any  of  the  money,  and  may  not  be  liable  or  answer- 
able for  it,  yet  he  may  be  responsible  for  the  whole,  though 
he  receives  none;  thus,  if  knowing  that  his  cotrustee  has 
no  character  or  credit,  and  is  unfit  to  manage  the  trust  funds, 

1  Mucklow  V.  Fuller,  Jac.  198  ;  Williams  v.  Nixon,  2  Beav.  472  ;  Leigh 
V.  Barry,  3  Atk.  584;  Dawson  v.  Clark,  18  Ves.  254;  Underwood  v. 
Stevens,  1  Mer.  712;  Hanbury  v.  Kirkland,  3  Sim.  265;  Langston  v.  Oli- 
vant,  Coop.  33 ;  Brumridge  v.  Brumridge,  27  Beav.  5 ;  Rehden  v.  Wesley, 
29  id.  213;  Drosier  v.  Brereton,  15  id.  221 ;  Fenwick  v.  Greenwell,  10  id. 
418;  Pride  v.  Fooks,  2  id.  430;  Sadler  v.  Hobbs,  2  Bro.  Ch.  114;  Bone 
V.  Cook,  McClel.  168;  13  Price,  332;  Clough  v.  Dixon,  8  Sim.  594;  3  M. 
&  Cr.  490;  Dix  v.  Burford,  19  Beav.  409  ;  Litchfield  v.  White,  3  Selden, 
438;  Wilkins  v.  Hogg,  3  Gif.  116;  10  W.  R.  47;  Worral  v.  Harford,  8 
Ves.  8;  Moyle  v.  Movie,  2  R.  &  M.  170;  Munch  v.  Cockerell,  9  Sim.  339; 
5  M.  &  Cr.  178 ;  ]\Iacdonnel  v.  Harding,  7  Sim.  176.  But  a  testator  can 
draw  the  indemnity  clause  so  broad  that  cotrustees  will  not  be  liable  even 
for  gross  negligence.     Wilkins  v.  Hogg,  3  Gif.  116;  10  W.  R.  47. 

2  Earle  v.  Earle,  93  N.  Y.  104. 

8  Hengst's  App.,  24  Penn.  St.  413;  Clark's  App.,  18  id.  175;  Duncom- 
mun's  App.,  17  id.  268. 

*  Burrill  v.  Sheil,  2  Barb.  457;  Contee  r.  Dawson,  2  Bland,  264;  Wood 
V.  Wood,  5  Paige,  590  ;  Weigand's  App.,  28  Penn.  St.  471. 

588 


CHAP.    XIV.]  WIIKX    LIABLE   FOR   COTRUSTEES.  [§  418. 

he  suffers  the  money  to  be  received  by  hitn,  or  to  remain  in 
his  hands,  he  will  be  answerable,  as  if  he  receives  it  him- 
self, on  the  ground  that  he  lias  committed  a  breach  of  trust 
in  not  using  due  care  and  diligence;^  and  the  same  rule  will 
apply  if  he  sulTcrs  the  money  to  remain  in  the  hands  of  his 
cotiustee,  however  competent  and  responsible,  longer  than 
is  necessary.  2  It  is  also  the  duty  of  the  trustee  to  ascertain 
the  actual  facts,  and  not  rely  up(jn  tlic  bare  assertion  of  his 
cotrustee,  in  relation  to  the  condition  of  the  trust  fund.^ 
Thus,  where  two  trustees  allowed  their  cotrustee  to  open  a 
box  at  their  banker's  in  which  were  stocks  and  bonds,  and 
he  converted  some  of  the  trust  property  to  his  own  use,  but 
assured  his  cotrustees  that  all  was  right,  they  were  held  to 
answer  for  the  loss,  because  they  had  not  taken  the  pains  to 
ascertain  the  facts,  but  had  relied  upon  the  assertion  of  their 
cotrustee.*  So  trustees  must  ascertain  the  condition  of  the 
funds  at  all  times  within  which  a  reasonable  man  should 
ascertain  the  condition  of  his  own  property  ;  as  where  a  mort- 
gage to  three  trustees  had  been  paid  off,  and  the  money  came 
to  the  hands  of  one,  and  was  invested  in  bills  ami  notes  of 
the  East  India  Company  payable  in  two  years,  and  these  were 
paid  into  the  hands  of  the  same  trustee  to  whom  the  mort- 
gage had  been  paid,  and  the  acting  trustee  asked  to  have  the 
money  remain  in  his  hands  on  a  mortgage  to  be  given ;  and 
it  so  remained  for  a  year,  no  mortgage  being  executed,  the 
other  trustees  taking  no  active  steps  for  several  years  to 
know  the  actual  condition  of  the  trust  fund;  this  was  held  to 

1  Clark  V.  Clark,  8  Paige,  153;  Wyman  v.  Jones,  4  Md.  Ch.  500; 
Elmendorf  v.  Lansing,  4  Jolins.  Ch.  .502;  Rinc^g-old  v.  Kinggold,  1  II.  &  G. 
11;  State  v.  Guilford,  15  Ohio,  593;  Pirn  v.  Downing,  11  Serg.  &  R.  71 ; 
Evans's  Est.,  2  Ash.  470;  Jones's  App.,  8  Watts  &  S.  147.  But  the  cir- 
cumstances must  be  such  as  ■would  put  a  reasonable  man  upon  his  guard 
in  relation  to  his  own  property.  Jones's  App.,  8  Watts  &  S.  147;  Lin- 
coln V.  Wright,  4  Beav.  427;  Lockwood  v.  Riley,  1  De  G.  &  J.  401. 

2  Brice  r.  Stokes,  11  Ves.  319  ;  7.V  Freyer,  3  K.  &  J.  317:  Gregory  r. 
Gregory,  2  Y.  &  C.  313;  Bone  i:  Cook,  McClel.  168;  Thompson  r.  Finch, 
22  Beav.  316;  Lincoln  v.  Wright.  4  Beav.  427. 

8  Thompson  v.  Finch,  22  Beav.  316;  8  De  G.,  M.  &  G.  560;  Ilanbury 
V.  Kirkland,  3  Sim.  265 ;  Bates  v.  Underbill,  3  Redf.  (N.  Y.)  365. 
*  Mendes  v.  Guedalla.  2  John.  &  II.  259. 

589 


§  419.]  GENERAL    DUTIES    OF   TRUSTEES.  [CHAP.    XIV. 

be  a  breach  of  trust,  and  they  were  decreed  to  make  good  the 
loss.^  A  trustee  is  bound  to  inquire  and  ascertain  for  what 
purpose  a  cotrustee  desires  the  money ;  what  investments  he 
proposes  to  make,  and  what  securities  he  proposes  to  take, 
and  he  must  take  pains  to  see  that  the  proposed  investments 
are  actually  madc.^  If  a  trustee  performs  his  duty  in  these 
respects,  and  his  cotrustee,  in  spite  of  these  precautions, 
squanders  or  wastes  the  fund,  he  will  not  be  answerable 
therefor.  So  if  the  cotrustee  gets  possession  of  the  trust 
fund  by  a  fraud  or  crime,  the  others  will  not  be  liable. ^  But 
if  a  trustee  receive  any  portion  of  the  funds  from  a  transac- 
tion, he  must  personally  see  to  the  application  of  them :  he 
cannot  pass  them  over  to  his  cotrustee  for  investment  or 
distribution ;  and  if  he  do  so,  he  will  be  personally  responsi- 
ble for  the  acts  and  defaults  of  such  cotrustee.* 

§  419.  In  the  original  case  of  Townley  v.  Sherborne,  it 
was  determined  that  if  there  was  any  dolus  malus,  or  any 
evil  practice,  or  fraud,  or  ill  intent  in  him  that  permitted 
his  companion  to  receive  the  whole  fund,  he  should  be  charged 
that  received  nothing.^  Thus,  if  one  trustee  stands  by  and 
sees  his  cotrustee  misemploy  or  misapply  the  money ;  ^  or 
acquiesces   in   the   wrongful  use  of  the   money  by   his   co- 

1  Walker  v.  Symonds,  3  Swanst.  1.  See  Thompsons.  Finch,  22  Beav. 
326. 

2  Hanbury  v.  Kirkland,  3  Sim.  265  ;  Broadhurst  v.  Balguy,  1  Y.  &  C. 
Ch.  16  ;  Thompson  v.  Finch,  22  Beav.  326. 

3  Cottam  V.  Eastern  Counties  R.  R.  Co.,  1  John.  &  H.  243  ;  Mendes  v. 
Guedalla,  2  John.  &  II.  259  ;  Barnard  v.  Bagshaw,  9  Jur.  (n.  s.)  220 ;  3 
De  G.,  J.  &  S.  355 ;  Trutch  v.  Lamprell,  20  Beav.  116  ;  Baynard  v.  Wool- 
ley,  id.  583  ;  Griffiths  v.  Porter,  25  Beav.  236;  Eager  v.  Barnes,  31  Beav. 
579 ;  Margetts  v.  Perks,  34  L.  J.  Ch.  109. 

4  Sterrett's  App.,  2  Penn.  219;  Clark's  App.,  18  Penn.  St.  175;  Xyce's 
App.,  5  Watts  &  S.  254;  Commonwealth  v.  McAlister,  28  Penn.  St.  480  ; 
Deaderick  v.  Cantrell,  10  Yerg.  263;  McMurray  v.  Montgomery,  2  Swanst. 
374  ;  Hughlett  v.  Hughlett,  5  Humph.  453  ;  IMumford  v.  Murray,  6  Johns. 
Ch.  1;  Ray  V.  Doughty,  4  Blackf.  115;  Worth  v.  McAden,  1  Dev.  &  B. 
Eq.  199;  Graham  v.  Davidson,  2  Dev.  &  B.  Eq.  155;  Sparhawk  v.  Buell, 
9  Vt.  41  ;  Edmonds  v.  Grenshaw,  14  Peters,  166. 

6  Townley  i\  Shei'borne,  Bridg.  35;  Mucklow  v.  Fuller,  Jac.  198. 
6  Williams  v.  Nixon,  2  Beav.  475. 
590 


ClIAI'.    XIV.]  LIABILITY    FOR   COTRUSTKES,  [§  419. 

trustee;^  or  if  a  trustee  acquiesees  in  his  cotrustee's  retain- 
ing the  money  in  his  hands  unnecessarily  ;2  or  if  he  connives 
at  a  hreaeh  of  trust  by  his  cotrustee;^  or  conceals  such 
breach;*  or  makes  any  misrepresentation  respecting  the 
investment  of  the  fund;^  or  if  he  does  any  act  to  put  the 
money  out  of  his  own  control  and  into  the  sole  power  of  his 
cotrustee,  as  by  joining  in  a  conversion  of  the  property  and 
allowing  his  cotrustee  to  receive  and  retain  the  proceeds  ex- 
clusively;*^ or  if  he  makes  over  the  trust  fund  exclusively  to 
his  cotrustee;"  or  executes  a  power  of  attorney  to  him; ^  or 
signs  a  draft  or  order,  or  assigns  a  mortgage,  enabling  his 
cotrustee  to  deal  with  the  investments  exclusively;^  or  if  he 
suffers  the  trust  fund  to  be  invested  in  the  sole  name  of  his 
cotrustee ;^^  or  to  be  paid  into  bank  to  his  sole  credit,"  —  in 
all  these  cases  there  is  an  actual  or  constructive  breach  of 
trust,  which  renders  all  the  trustees  liable  for  any  loss;  and 

1  Booth  V.  Booth,  1  Beav.  125  ;  Dix  v.  Burford,  19  Beav.  409. 

-  Lincoln  v.  Wright,  4  Beav.  427;  James  v.  Frearson,  1  N.  C.  C.  370; 
Evans's  Est.,  2  Ash.  470  ;  IMm  v.  Downing,  11  Serg.  &  R.  71  ;  Stjles  v. 
Guy,  1  II.  &  Tw.  523 ;  1  Mac.  &  Gor.  422;  IG  Sim.  230  ;  Scully  v.  Delany, 
2  Ir.  Eq.  105;  Egbert  v.  Butter,  21  Beav.  500;  West  v.  Jones,  1  Sim. 
(n.  s.)  205. 

'  Boardman  v.  Mosman,  1  Bro.  Ch.  68. 

*  Ibid. 

6  Bates  V.  Scales,  12  Ves.  402. 

*  Sadler  v.  Hobbs,  2  Bro.  Ch.  114  ;  Chambers  v.  Minchin,  7  Ves.  IDS; 
Hanbury  v.  Kirkland,  3  Sim.  265  ;  Clough  v.  Bond,  3  M.  &  Cr.  496;  Scur- 
field  V.  Howes,  3  Bro.  Ch.  90;  Shipbrook  v.  Hinchinbrook,  11  Ves.  252  ; 
Brice  v.  Stokes,  id.  319;  Underwood  v.  Stevens,  1  Mer.  713;  Bradwell  v. 
Catchpole,  3  Swanst.  78,  n.  ;  Williams  i'.  Nixon,  2  Beav.  472;  Broadhur.st 
V.  Balguy,  1  N.  C.  C.  16  ;  Curtis  v.  Ma.son,  12  L.  J.  (x.  s.)  Ch.  443. 

''  Keble  r.  Thompson,  3  Bro.  Ch.  Ill  ;  Langford  v.  Gascoyne,  11  Ves. 
333;  French  v.  Hobson,  9  Ves.  103 ;  Joy  v.  Campbell,  1  Sch.  &  Lef.  341 ; 
Moses  V.  Levi,  3  Y.  &  C.  359. 

8  Harrison  v.  Graham,  1  P.  Wms.  241,  n.  ;  Hewett  v.  Foster,  6  Beav. 
259  ;  Monoll  r.  Monell,  5  Johns.  Ch.  283  ;  Pirn  v.  Downing,  11  Serg.  & 
R.  66;  Duncommun's  App.,  17  Penn.  St.  268. 

9  Sadler  V.  Hobbs,  2  Bro.  Ch.  114;  Broadhurst  r.  Balgiiy,  1  Y.  &  C. 
C.  C.  16. 

"  Walker  v.  Symonds,  3  Swanst.  58. 
"  Clough  V.  Bond,  3  M.  &  Cr.  490. 

591 


§419  a.]  GENERAL   DUTIES   OF   TRUSTEES.  [CIIAP.    XIV. 

SO  if  a  trustee  does  not  collect  a  debt  due  to  the  estate  from 
his  cotrustee.^  In  all  cases,  if  a  trustee  becomes  aware  of 
any  fact  tending  to  show  that  his  cotrustee  is  committing  a 
breach  of  trust,  or  if  he  learns  any  fact  endangering  the  trust 
fund,  he  must  communicate  it  to  his  cotrustees  or  make 
application  to  the  court,^  and  take  active  measures  to  protect 
the  fund,  or  he  will  be  personally  liable  for  its  loss.  If  a 
trustee  himself  receives  the  trust  fund  or  part  of  it,  and  pays 
it  over  to  his  cotrustee,  who  wastes  it,  he  will  be  liable  for 
it;^  and  so  if  he  pei-mits  his  cotrustee  to  receive  money, 
having  notice  that  it  will  be  misapplied,  or  if  he  is  guilty  of 
any  negligence  or  want  of  reasonable  care.*  (a) 

§  419  a.  If  the  trust  instrument  gives  the  cestui  a  right  to 
appoint  one  to  whom  the  trustee  shall  convey,  this  power 
cannot  be  exercised  by  will,  for  the  will  takes  effect  only  at 
the  death  of  the  cestui^  and  that  very  event  terminates  the 
relation  of  trust  between  the  trustee  and  cestui.^  This  reas- 
oning seems  very  flimsy,  and  likely  to  produce  injustice  if 
applied  to  cases  where  the  facts  are  different  from  those  in 
the  above  case,  where  the  title  was  held  to  have  passed  by 
the  will  itself,  though  not  by  the  trustee's  deed  in  pursuance 
of  the  will. 

1  Mucklow  V.  Fuller,  Jack.  198 ;  Candler  v.  Tillett,  22  Beav.  254. 

2  Wayman  v.  Jones,  4  Md.  Ch.  506 ;  Chertsey  v.  Market,  6  Price,  279; 
Powlet  V.  Herbert,  1  Ves.  Jr.  297  ;  Franco  v.  Franco,  3  Ves.  75  ;  Walker 
V.  Symonds,  3  Swanst.  71 ;  Brice  v.  Stokes,  11  Ves.  319  ;  Olive  v.  Court, 
8  Price,  166;  Att.  Gen.  v.  Holland,  2  Y.  &  C.  699;  Booth  v.  Booth,  1 
Beav.  125  ;  Williams  v.  Nixon,  2  Beav.  472  ;  Blackwood  v.  Burrows,  2 
Conn.  &  Laws,  477  ;  Holcomb  v.  Holcomb,  2  Beas.  413 ;  Crane  v.  Hearn, 
26  N.  J.  Eq.  378. 

8  Mumford  v.  Murray,  6  Johns.  Ch.  1 ;  Monell  v.  Monell,  5  Johns.  Ch. 
283  ;  Clark  v.  Clark,  8  Paige,  153  ;  Ringgold  v.  Ringgold,  1  H.  &  G.  11  ; 
Glenn  v.  McKim,  3  Gill,  366  ;  Evans's  Est.,  2  Ash.  470 ;  Graham  v.  Aus- 
tin, 2  Grat.  273  ;  Graham  v.  Davidson,  2  Dev.  &  B.  Eq.  155. 

*  Schenck  v.  Schenck,  1  Green,  Ch.  174. 

6  Bradstreet  v.  Kinsella,  76  Mo.  63. 

{a)  When   one  of  several  trustees  has  notice,   they  are   all    notified. 
Chapman  v.  Chapmanj  91  Va.  397. 
592 


CIIAl".    XIV.]  LIABILITY    FOR   COTRUSTEES.  [§  420. 

§  420.  In  a  few  cases,  it  has  been  held  that,  if  trustees 
join  in  executing  a  power  of  sale,  and  one  receive  the 
money,  all  must  be  held  answerable,  if  it  is  lost  by  the  one 
that  receives  it.'  Tliese  decisions  have  been  founded  \i\)(jn 
the  rule,  that  all  the  trustees  who  join  in  any  transaction 
must  be  responsible  for  carrying  it  through.  But  they  ignore 
the  other  rule,  that  a  power  must  be  strictly  executed  by  all 
the  persons  to  whom  it  is  given,  and  that  if  a  trustee  joins  in 
the  power,  and  signs  receijjts  for  conformity,  but  receives 
none  of  the  money,  omits  no  duty,  and  does  no  act  tending 
to  a  lircach  of  the  trust,  he  will  not  be  held  for  a  loss  occa- 
sioned by  a  breach  of  trust  by  the  other  trustees.  The  great 
preponderance  of  authority  is,  that  a  sale  under  a  power  is 
not  different  from  the  execution  of  a  receipt  for  the  trust 
moneys.^  If,  however,  a  proper  investment  of  the  money 
received  under  a  sale  is  once  made,  the  liability  of  a  non- 
acting  trustee  ceases  under  all  the  cases.  ^  If  a  trustee 
renounces  the  trust,  he,  of  course,  cannot  be  liable  for  a 
breach  of  the  trust  by  the  other  trustees,  unless  the  trust 
fund  is  in  some  manner  in  his  hands,  and  is  misapplied  by 
him.*  So  the  estate  of  a  deceased  trustee  cannot  be  liable 
for  a  breach  of  trust  by  a  surviving  trustee,  after  the  decease 
of  a  cotrustee.^  A  distinction  has  been  attempted  between 
discretionary  trusts  and  directory  trusts  as  follows:  it  has 
been  said,  that,  in  discretionary  trusts,  that  is,  where  the 
funds  may  be  invested  or  employed  according  to  the  discre- 

1  Spencer  v.  Spencer,  11  Paige,  299 ;  Ringgold  v.  Ringgold,  1  H.  &  G. 
11;  Maccubbin  v.  Cromwell,  7  G.  &  J.  157;  Deaderiek  r.  Cantrell,  10 
Yerg.  2G3  ;  Wallace  v.  Thornton,  2  Brocken.  434  ;  Ilauser  v.  Lehman,  2 
Ired.  Eq.  594. 

2  See  ante,  §  416,  note;  Grifiin  r.  Macauley,  7  Grat.  476;  Atcheson  r. 
Robertson,  3  Rich.  Eq.  132  ;  Kip  v.  Deniston,  14  Johns.  23 ;  Jones's 
App.,  8  Watts  &  S.  147;  Boyd  v.  Boyd,  3  Grat.  114.  But  if  a  trustee  not 
only  join  in  the  execution  of  the  power,  but  in  receiving  the  money,  he 
must  keep  it  in  the  joint  names  of  the  trustees  until  invested ;  and  he 
cannot  pay  it  over  to  his  cotrustee  without  being  responsible  for  it  if  lost. 
Ringgold  V.  Ringgold,  1  II.  &  G.  11  ;  Glenn  t-.  McKim,  3  Gill,  366. 

«  Glenn  v.  JMcKini,  3  Gill,  366. 

*  Claggett  V.  Hall,  9  G.  &  J.  80. 

6  Brazer  r.  Clark,  5  Pick.  96 ;  Towne  v.  Aramidown,  20  Pick.  535. 

VOL.  I.  — 38.  593 


§  421.]  GEXEEAL   DUTIES   OF   TRUSTEES.  [CHAP.    XIV. 

tion  of  the  trustees,  a  non-acting  trustee  will  not  be  respon- 
sible for  a  misapplication  of  the  fund  by  a  cotrustee,  unless 
he  is  guilty  of  some  fraud  or  negligence  that  amounts  to  a 
breach  of  trust,  upon  the  principles  before  stated;^  but 
where  a  will  is  peremptory  that  certain  investments  shall  be 
made  by  the  trustees,  all  the  trustees  will  be  liable  if  the 
directions  of  the  will  are  not  carried  out.^  But  these  direc- 
tory trusts  may  be  executed  by  a  part  of  the  trustees,  and  the 
others  may  join  for  conformity^  without  doing  more  than  is 
absolutely  necessary  to  accomplish  the  trust,  and  therefore 
these  trusts  fall  within  the  rule,  that  a  trustee  who  signs 
receipts  for  conformity,  and  does  no  more,  is  not  liable  for  a 
breach  of  trust  by  his  cotrustee.^  But  if  the  will  expressly 
provide  for  the  joint  action  and  responsibility  of  the  execu- 
tors or  trustees,  it  will  be  binding  upon  all  those  who  assume 
the  trust,  and  render  them  all  liable  for  any  loss  through 
the  default  of  one.* 

§  420  a.  "Where  there  are  two  trustees,  and  the  manage- 
ment of  the  trust  is  left  to  one,  and  the  acting  trustee  com- 
mits a  breach  of  trust,  the  passive  trustee  is  not  entitled  to 
indemnity  from  the  acting  trustee,  unless  there  are  some 
special  circumstances,  as  where  the  acting  trustee  is  solicitor 
for  the  trust,  or  has  derived  a  personal  benefit  from  his  breach 
of  trust.  ^ 

§  421.  Following  the  rule  as  to  cotrustees,  executors  are 
generally  liable  only  for  their  own  acts,  and  not  for  the  acts 
of  their  coexecutors.^     But  while   cotrustees   may   not   be 

1  Deaderick  v.  Cantrell,  10  Yerg.  264  ;  Thomas  v.  Scruggs,  id.  400. 

2  Ibid. 

«  Ante,  §  416,  note. 

4  Weigand's  App.,  28  Penn.  St.  471 ;  Wood  t-.  Wood,  5  Paige,  596 ; 
Contee  v.  Dawson,  2  Bland,  264;  Burrill  v.  Shell,  2  Barb.  457. 

6  Bahin  i'.  Hughes,  31  Ch.  D.  390. 

«  Hargthorpe  v.  Milforth,  Cro.  Eliz.  318  ;  Anon.  Dyer,  210  a  ;  Went. 
Ex.  306  ;  Williams  v.  Nixon,  2  Beav.  472 ;  Peters  r.  Beverly,  10  Peters, 
532  ;  1  How.  134  ;  Sutherland  r.  Brush,  7  Johns.  Ch.  17 ;  White  v.  Bul- 
lock, 20  Barb.  91 ;  Douglas  v.  Satterlee,  11  Johns.  16;  Banks  v.  Wilkes,  3 
594 


CHAP.    XIV.]  LIABILITY   OF   COEXECUTORS.  [§  421. 

liable  for  money  which  they  did  not  receive,  although  they 
joined  in  the  receipt,  cocxecutors  are  always  liable  if  they 
join  in  the  receipts,  (a)  The  reason  is  this :  trustees  must 
join  in  many  acts,  they  having  for  the  most  part  a  joint 
power,  while  executors  have  a  several  power,  over  the  estate. 
Each  executor  has  an  independent  right  over  the  personal 
property  of  his  testator:  he  may  sell  it,  and  receive  the 
purchase-money,  and  give  receipts  in  his  own  name.  If, 
therefore,  an  executor  joins  his  coexecutor  in  signing  a 
receipt,  he  does  an  unmeaning  act,  unless  he  intended  to 
render  himself  jointly  answerable  for  the  money;  and  so 
the  court  hold,  that  if  an  executor  joins  in  giving  a  receipt 
for  money  he  shall  be  answerable,  whether  he  received  any 
of  it  or  permitted  his  coexecutor  to  receive  the  whole. ^(?>) 
So,  if  an  executor  joins  in  executing  a  power  of  sale,  given 

Sandf.  Ch.  99 ;  Moore  v.  Tandy,  3  Bibb,  97;  Fennimore  v.  Fennimore,  2 
Green,  Ch.  292  ;  Call  v.  Ewing,  1  Blackf.  301  ;  Williams  c.  Maitland,  1 
Ired.  92 ;  Kerr  v.  Kirkpatrick,  8  Ired.  Eq.  137 ;  Clarke  r.  Blount,  2  Dev. 
Ch.  51;  Clarke  v.  Jenkins,  3  Rich.  Eq.  318  ;  Knox  v.  Pickett,  4  Des.  190  ; 
Kerr  i;.  Water,  19  Ga.  136;  Charlton  /■.  Durham,  L.  R.  4  Ch.  433  ;  McKim 
V.  Aulbach,  130  Mass.  481. 

^  Aplyn  V.  Brewer,  Pr.  Ch.  173  ;  Murrill  v.  Cox,  2  Vern.  560;  Ex  parte 
Belchier,  Arab.  219 ;  Leigh  v.  Barry,  3  Atk.  584 ;  Ilamson  r.  Graham,  1 
P.  Wms.  241,  cited  Darwell  v.  Darwell,  2  Eq.  Cas.  Ab.  456  ;  Gregory  c. 
Gregory,  2  Y.  &  C.  316  ;  Hall  v.  Carter,  8  Ga.  388 ;  Monell  v.  Monell,  5 
Johns.  Ch.  283;  Monahan  v.  Gibbons,  19  Johns.  427;  Sterrett's  App.,  2 
Penn.  219  ;  Jones's  App.,  8  Watts  &  S.  143;  Johnson  v.  Johnson,  2  Hill, 
Eq.  290 ;  Clarke  v.  Jenkins,  3  Rich.  Eq.  318. 

(a)  "  At  the  present  day,  execu-  was  the  man  who  paid  his  ancestor's 

tors  and  administrators  hold  the  as-  debts  and  took  his  property.     The 

sets  of   the   estate   in    a   fiduciary  executor  did  not  step  into  the  heir's 

capacity.     Their  rights  and  liabili-  shoes,  and  come  fully  to  represent 

ties,  in  respect  of  the  fund  in  their  the   person   of   the   testator    as   to 

hands,  are  very  like  those  of  trus-  personal     property     and    liabilities 

tees.     But  this   way   of   regarding  until  after  Bracton  wrote  his  great 

them       is      somewhat      modern."  treatise  on  the  Laws  of  England.'' 

Holmes,  J.,  in  an  article  in  9  Harv.  Ibid.,  in  12  Harv.  L.  Rev.  446. 
L.  Rev.   p.   42,  which  reviews  in-         (b)  Fesmire's  Estate,  134   Penn. 

stances  of  this  change  in  the  law.  St.  67  ;    Fesmire   v.  Shannon,   143 

"  The  executor  originally  was  noth-  id.  201. 
ing  but  a  feoffee  to  uses.     The  heir 

595 


§  422.]  GENEKAL   DUTIES   OF   TEUSTEES.  [CHAP.    XIV. 

in  the  will,  he  will  be  responsible  for  the  appropriation  of 
the  proceeds,  though  his  coexecutor  received  all  the  money.* 
An  attempt  has  been  made  to  break  down  these  distinctions 
between  executors  and  trustees,  and  to  establish  the  rule, 
that  no  intention  to  be  jointly  answerable  can  be  inferred 
from  the  mere  fact  of  signing  a  receipt  without  receiving  any 
part  of  the  money  either  separately  or  jointly.  ^  And  it  ap- 
pears now  to  be  well  settled,  that  if  the  joint  receipt  is 
purely  nugatory,  and  no  funds  pass  upon  it  into  the  hands  of 
either  executor,  a  coexecutor  will  not  be  liable.^  So  far  the 
doctrine  of  Lord  Northington  in  Westerly  v.  Clarke  has  been 
agreed  to,  though  the  case  itself  seemed  to  go  further.*  Lord 
Harcourt,  in  Churchill  v.  Hobson,^  started  another  distinc- 
tion, that  executors  who  joined  in  the  receipt  were  liable  to 
creditors,  though  they  did  not  receive  the  money,  while  they 
were  not  liable  to  legatees  or  heirs;  but  this  distinction  has 
no  standing  in  a  court  of  equity,  whatever  may  be  the  rule  at 
law,  and  is  now  overruled.^ 

§  422.  If  an  executor  does  any  act  to  transfer  the  property 
into  the  exclusive  control  of  a  coexecutor,  and  thus  enables 

1  Ochiltree  v.  Wright,  1  Dev.  &  B.  Eq.  336  ;  Hauser  v.  Lehman,  2  Ired. 
Eq.  594  ;  Mathews  i-.  Mathews,  1  McMul.  Eq.  410 ;  Johnson  v.  Johnson, 
2  Hill,  Eq.  277;  McMurray  v.  Montgomery,  2  Swanst.  374;  Deaderick  v. 
Cantrell,  10  Yerg.  263. 

2  Westerly  v.  Clarke,  1  Ed.  537 ;  1  Dick.  329 ;  Candler  v.  Tillett,  22 
Beav.  257  ;  Harden  v.  Parsons,  1  Ed.  147  ;  Churchill  v.  Hobson,  1  P.  Wms. 
241,  n.;  Stell's  App.,  10  Penn.  St.  152;  McNair's  App.,  4  Rawle,  145; 
Ochiltree  v.  Wright,  1  Dev.  &  B.  Eq.  336 ;  Doyle  v.  Blake,  2  Sch.  &  Lef . 
242  ;  McKim  v.  Aulbach,  130  Mass.  481. 

3  Westerly  v.  Clarke,  1  Ed.  537  ;  Scurfield  v.  Howes,  3  Bro.  Ch.  94  ; 
Hovey  r.  Blakeman,  4  Ves.  608 ;  Chambers  v.  Minchin,  7  Ves.  198 ;  Brice 
V.  Stokes,  11  Ves.  319;  3  Lead.  Cas.  Eq.  557,  558. 

*  Scurfield  v.  Howes,  3  Bro.  Ch.  94  ;  Hovey  v.  Blakeman,  4  Ves.  608 ; 
Chambers  v.  Minchin,  7  Ves.  198;  Brice  v.  Stokes,  11  Ves.  325  ;  3  Lead. 
Cas.  Eq.  725-759  ;  Walker  v.  Symonds,  3  Swanst.  64 ;  Shipbrook  v.  Hinch- 
inbrook,  16  Ves.  479  ;  Joy  v.  Campbell,  1  Sch.  &  Lef.  341 ;  Doyle  v.  Blake, 
2  id.  242. 

5  1  P.  Wms.  241 ;  Gibbs  v.  Herring,  Pr.  Ch.  49  ;  Harden  v.  Parsons,  1 
Eden,  147. 

«  Sadler  v.  Hobbs,  2  Brown,  Ch.  117;  Doyle  v.  Blake,  2  Sch.  &  Lef. 
239. 

596 


CHAP.   XIV.]  LIABILITY   OF   COEXECUTOKS.  [§  423. 

his  cocxccutor  to  misapply  the  same,  he  will  be  lialjle;'  (a) 
as  if  he  joins  in  drawing'-^  or  indorsing^  a  bill  or  note,  or  de- 
livers or  assigns  securities  to  his  coexecutor  to  enable  him 
to  receive  the  money  alone,*  or  if  he  gives  him  a  power  of 
attorney/  or  docs  any  other  act  that  enables  his  coexecutor 
to  misapply  the  money;  and  so  it  was  held,  "that,  if  by 
agreement  between  the  executors,  one  be  to  receive  and  in- 
termeddle with  such  a  part  of  the  estate,  and  the  other  with 
such  a  part,  each  of  them  will  be  chargeable  for  the  whole, 
because  the  receipts  of  each  are  pursuant  to  the  agreement 
made  betwixt  both.  "^  Probably  the  case  would  not  now  be 
followed,  but  it  illustrates  the  principle. 

§  423.  But  if  the  act  is  such  that  it  is  absolutely  neces- 
sary that  the  executors  should  all  join  in  it,  their  liability 
will  be  put  upon  the  same  ground  as  the  liability  of  trustees 
joining;  as,  if  it  is  necessary  that  they  should  indorse  a  bill 
in  order  to  collect  it,*"  or  that  they  should  join  in  transfer- 
ring stock. ^  But  even  if  the  act  is  indispensable,  it  is  still 
the  duty  of  the  executor  to  see  that  it  is  consistent  with  a 
due  execution  of  the  trust, ^  and  he  must  not  rely  upon  the 

1  Townshend  v.  Barber,  1  Dick.  356 ;  Moses  v.  Levi,  3  Y.  &  C.  359 ; 
Candler  r.  Tillett,  22  Beav.  263  ;  Clough  r.  Dixon,  3  Myl.  &  Cr.  497 ; 
Dines  v.  Scott,  T.  &  R.  361 ;  Edmonds  r.  Crenshaw,  14  Pet.  166  ;  Spar- 
hawk  V.  Buell,  9  Vt.  41 ;  Adair  v.  Brimmer,  74  N.  Y.  539. 

2  Sadler  r.  Ilobbs,  2  Bro.  Ch.  114. 
'  Hovey  v.  Blakeman,  4  Yes.  60S. 
*  Candler  r.  Tillett,  22  Beav.  236. 

6  Doyle  V.  Blake,  2  Sch.  &  Lef.  231  ;  Lees  v.  Sanderson,  4  Sim.  28  ; 
Kilbee  v.  Sneyd,  2  Moll.  200. 

6  Gill  r.  Att.  Gen.,  Hardw.  314;  Moses  v.  Levi,  3  Y.  &  C.  359  ;  Lewis 
V.  Nobbs,  L.  R.  8  Ch.  D.  591. 

'  Hovey  v.  Blakeman,  4  Ves.  60S. 

8  Chambers  v.  Minchin,  7  Ves.  197;  Shipbrook  v.  Hinchinbrook,  11 
Ves.  254  ;  16  Ves.  479  ;  Terrell  i'.  Mathews,  1  Mac.  &  G.  434,  n. ;  Murrill 
r.  Cox,  2  Vern.  570  ;  Scurfield  v.  Howes,  3  Bro.  Ch.  94  ;  Moses  v.  Levi, 
3  Y.  &  C.  359. 

9  Ibid. ;  Underwood  v.  Stevens,  1  Mcr.  712  ;  Bick  v.  Alotley,  2  Myl. 
&  K.  312  ;  Williams  v.  Nixon,  2  Beav.  472 ;  Hewett  v.  Foster,  6  Beav. 
259. 

(a)  In  reOsbom,  87  Cal.  1 ;  Walker  v.  Walker,  SS  Ky.  615. 

597 


§  425.]  GENERAL  DUTIES   OF   TRUSTEES.  [CIIAP.    XIY 

representations  or  assertions  of  his  coexecutor,  as  to  its 
necessity.  He  must  use  due  diligence  and  make  due  inves- 
tigations to  ascertain  if  the  representations  are  true ;  ^  as 
where  the  debts  should  have  been  long  paid  in  the  ordinary 
course  of  administration  a  coexecutor  applied  to  the  other 
to  join  in  a  sale  of  stocks  to  pay  the  debts,  and  the  executor 
inquired  and  learned  that  there  were  debts  to  be  paid,  but  it 
afterwards  appeared  that  the  coexecutor  had  the  money  to 
pay  the  debts  in  his  own  hands ;  the  executor  who  joined  in 
conveying  the  stocks  was  held  for  the  default  of  his  co- 
executor,  on  the  ground  of  negligence  in  not  knowing  how 
the  assets  in  the  hands  of  the  coexecutor  were  disposed  of, 
and  how  it  happened  that  the  debts  remained  unpaid.  ^ 

§  424.  So  an  executor  will  be  called  upon  to  make  good 
the  loss  of  money  that  he  allows  to  remain  two  years  or  any 
other  unreasonable  time  in  the  hands  of  his  coexecutor;  ^  but 
he  will  not  be  called  upon  to  repay  that  part  which  he  can 
show  that  his  coexecutor  actually  expended  in  the  execution 
of  the  trust.  ^  So,  if  an  executor  neglects  for  an  unreasonable 
time  to  insist  upon  the  payment  of  a  debt  to  the  estate  due 
from  his  coexecutor,  he  will  be  liable  to  pay  the  debt 
himself.^ 

§  425.  The  same  rules  that  apply  to  the  powers  and  liabil- 
ities of  coexecutors  apply  also  to  the  powers  and  liabilities 
of  joint  administrators.     There  is  one  dictum  that  the  liability 

1  Ibid. 

2  Shipbrook  v.  Hinchinbrook,  11  Ves.  254;  Bick  v.  Mathews,  3  Myl.  & 
K.  312  ;  Clark  v.  Clark,  8  Paige,  152. 

3  Scurfield  v.  Howes,  3  Bro.  Ch.  91 ;  Styles  v.  Guy,  1  Mac.  &  G.  422 ; 
1  H.  &  Tw.  523;  Egbert  v.  Butter,  21  Beav.  560;  Lincoln  v.  Wright, 
4  Beav.  427. 

*  Shipbrook  v.  Hinchinbrook,  11  Ves.  252;  16  Yes.  477;  Williams  v. 
Nixon,  2  Beav.  472  ;  Kilbee  v.  Sneyd,  2  Moll.  213 ;  Underwood  v. 
Stevens,  1  Mer.  172;  Brice  v.  Stokes,  11  Ves.  328;  Hewett  v.  Foster,  6 
Beav.  259. 

8  Styles  V.  Guy,  1  Mac.  &  G.  422  ;  1  H.  &  Tw.  523 ;  Egbert  v.  Butter, 
21  Beav.  560;  Scully  i'.  Delany,  2  Ir.  Eq.  165 ;  Candler  v.  Tillett,  22  Beav. 
257;  Carter  v.  Cutting,  5  Munf.  223. 
598 


CHAP.    XIV.]       LIABILITY    FOR    ACTS    OF   COTRUSTEE.  [§  426, 

I 

of  joint  administrators  is  like  the  lialtility  of  cotrustees, 
but  it  is  well  settled  that  the  liability  of  joint  administrators 
and  cocxecutors  is  identical. ^ 

§  426.  It  must  bo  borne  in  mind,  that  in  the  United  States, 
administrators,  executors,  guardians,  and  a  large  class  of 
trustees,  are  appointed  by  judges  of  probate,  surrogates, 
ordinaries,  or  oflicers  exercising  a  similar  jurisdiction.  All 
trustees  appointed  under  wills,  proved  and  recorded  in  pro- 
bate courts,  are  appointed  by  decrees  of  the  court  in  the  same 
manner  as  executors.  In  many  cases,  a  bond  with  sureties 
is  required  as  a  prerequisite  to  an  appointment  and  qualifi- 
cation to  act,  unless  such  bond  is  expressly  waived  by  the 
testator  or  the  cestui  que  trust.  This  bond  generally  runs  to 
the  judge  or  some  officer  for  the  use  and  protection  of  those 
beneficially  interested  in  the  estate.  If  it  is  a  joint  bond, 
executed  by  all  the  joint  administrators,  guardians,  co- 
executors  or  cotrustees,  it  is  in  the  nature  of  an  agreement 
to  be  answerable  for  each  other's  acts  and  defaults.  The 
remedy  for  a  breach  of  trust  in  such  cases  is  a  suit  upon  the 
bond  in  the  name  of  the  proper  person  for  the  benefit  of 
those  interested,  (a)  against  all  the  joint  makers  and  sureties 
of  the  bond;  and  any  breaches  of  trust,  committed  by  either 
or  all  of  the  trustees,  may  be  given  in  evidence,  and  a  judg- 
ment against  all  will  be  rendered,  although  the  breach  of 
trust  was  committed  by  one  alone.^  This  joint  liability  of 
all  the  cotrustees  under  a  joint  bond  results  from  the  nature 

1  Hudson  V.  Hudson,  1  Atk.  4G0. 

2  Willand  v.  Fenn,  2  Ves.  267,  cited;  Murray  ».  Blatchford,  1  Wend. 
583 ;  O'Neall  v.  Herbert,  1  McMul.  Eq.  405. 

'  Ames  V.  Arinstrong,  106  Mass.  35  ;  Hill  v.  Davis,  4  i\Iass.  137;  Brazer 
V.  Clark,  5  Pick.  96;  Towne  v.  Ammidown,  20  Pick.  535;  Newcombe  v. 
Williams,  9  Met.  525  ;  Sparhawk  v.  Buell,  9  Vt.  41 ;  Boyd  i:  Boyd,  1  Watts, 
368 ;  Bostick  v.  Elliott,  3  Head,  507  ;  Braxton  v.  State.  25  Ind.  82  ;  Jef- 
fries V.  Law.son,  39  Miss.  791;  Gayden  v.  Gaydeu,  1  McMul.  Eq.  435; 
Hughlett  V.  Hughlett,  5  Humph.  453 ;  Clarke  v.  State,  6  G.  &  J.  288  ; 
South  V.  Hay,  3  Mon.  88  ;  Anderson  r.  Miller,  6  J.  J.  Marsh.  5G8 ;  Morrow 
t'.  Peyton,  8  Leigh,  54;  Babcock  v.  Hubbard,  2  Conn.  539. 

(a)  See  Dexter  r.   Cotting,  149  Mass.  92. 

599 


§  427.]  GENERAL   DUTIES    OF   TRUSTEES.  [CIIAP.    XIV. 

of  the  bond,  and  from  the  technical  nature  of  an  action  at 
law  for  a  breach  of  the  bond  by  a  breach  of  the  trust.  If, 
however,  one  of  the  coexecutors  or  cotrustees  dies  and  a 
breach  of  trust  is  committed  by  the  survivor  after  his  death, 
the  estate  of  the  deceased  executor  cannot  be  made  liable  for 
the  breach  of  the  trust. ^  It  will  be  seen  at  once,  that  very 
few  of  the  rules  heretofore  stated  in  relation  to  the  liabili- 
ties of  executors  or  trustees  for  the  acts  and  defaults  of  their 
coexecutors  or  cotrustees  have  any  bearing  upon  the  liabil- 
ity of  cotrustees  who  have  given  a  joint  bond  for  the  faithful 
execution  of  the  trust.  The  statutes  of  many  of  the  States, 
however,  provide  that  separate  bonds  with  sureties  may  be 
taken  from  each  of  the  administrators,  executors,  guardians, 
or  trustees,  as  the  case  may  be.  And  where  separate  bonds 
are  taken  from  each  of  the  executors  or  trustees,  the  liability 
of  the  executor  or  trustee  for  the  acts  and  defaults  of  his  co- 
executor  or  cotrustee  would  be  governed  by  the  rules  and 
principles  hereinbefore  stated. ^  But  if  they  sign  a  joint 
bond,  they  are  jointly  liable.  ^ 

§  427.  Trustees  hold  a  position  of  trust  and  confidence. 
The  legal  title  of  the  trust  property  is  in  them,  and  generally 
its  whole  management  and  control  is  in  their  hands.  At  the 
same  time  the  beneficiaries  of  the  trust  may  be  women,  or 
children,  or  persons  incompetent  to  protect  their  own  inter- 
ests. For  these  reasons,  to  protect  the  weak  and  helpless  on 
the  one  hand,  and  to  prevent  trustees  from  using  their  posi- 
tion and  influence  for  their  own  gain,  and  to  prevent  them 
from  hazarding  the  trust  property  upon  what  they  may  think 
to  be  profitable  speculations,  on  the  other,  they  are  not 
allowed  to  make  any  profit  from  their  office.  They  cannot 
use  the  trust  property,  nor  their  relation  to  it,  for  their  own 
personal  advantage.  All  the  power  and  influence  which  the 
possession  of  the  trust  fund  gives  must  be  used  for  the  ad- 
vantage and  profit  of  the  beneficial  owners,  and  not  for  the 

1  Brazer  v.  Clark,  5  Pick.  96 ;  Towne  v.  Ammidown,  20  Pick.  535. 

2  McKim  I'.  Aulbach,  loO  Mass.  481. 
*  Ames  V.  Armstroug,  lOG  Mass.  18. 

600 


CHAP.   XIV.]         TRUSTEES   CAN   MAKE   NO   PROFIT.  [§  427. 

personal  gain  and  emolument  of  the  trustee.  No  other  rule 
would  be  safe ;  nor  would  it  be  possible  for  courts  to  apply 
any  other  rule,  as  between  trustee  and  cestui  que  trunt.^ 
This  rule  is  so  stringent  that  Lord  Eldon  once  sent  a  case  to 
a  master  to  inquire  whether  the  privilege  of  sporting  on  the 
trust  estate  could  be  let  lor  the  benefit  of  the  cestui  que  trust  ; 
if  not,  he  thought  the  game  should  belong  to  the  heir;  the 
trustee  might  aj)point  a  game-keeiier  for  the  preservation  of 
game  for  the  heir,  but  he  ought  not  to  keep  up  a  lodge  for 
his  own  pleasure. 2  So  where  a  trustee  retired  from  the  office 
in  consideration  that  his  successor  paid  him  a  sum  of  money, 
it  was  held  that  the  money  so  paid  must  be  treated  as  a  part 
of  the  trust  estate,  and  that  the  trustee  must  account  for  it, 
as  he  could  make  no  profit,  directly  or  indirectly,  from  the 
trust  property  or  from  the  position  or  office  of  trustee.^  If  a 
trustee  joins  in  betraying  the  trust  for  private  gain,  he  will 
have  to  bear  any  loss  that  may  fall  on  him  by  the  dishonesty 
of  his  confederates.  The  law  will  not  aid  him  against  them. 
It  will  not  unravel  a  tangled  web  of  fraud  for  the  benefit  of 
one  through  whose  agency  the  web  was  woven  and  wlio  has 
himself  become  enmeshed  therein.*  Trustees  may  be  enjoined 
from  carrying  out  a  contract  made  for  their  own  benefit.^ 
But  where  one  holds  a  trust  for  the  support  of  another, 
the   trustee   may  supply   goods   from   his   store   at    a   fair 

1  Burgess  v.  Wheate,  1  Ed.  226;  Docker  v.  Somes,  2  Myl.  &  K.  664; 
O'llerlihy  v.  Hedges,  1  Sch.  &  Lef.  126  ;  Bently  v.  Craven,  IS  Bccav.  75; 
Gubbius  ('.  Creed,  2  Sch.  &  Lef.  218;  Ex  parte  Andrews,  2  Rose,  412; 
Hamilton  'v.  Wright,  9  CI.  &  Fin.  Ill;  Middleton  v.  Spicer,  1  Bro.  Ch. 
205 ;  Sherrard  v.  Harborough,  Arab.  165 ;  Re  Shrewsbury  School,  1  Myl. 
&  Cr.  647;  Martin  v.  Martin,  12  Sim.  579  ;  Cooke  v.  Cholmondeley,  3  Drew. 
1;  Hawkins  v.  Chappell,  1  Atk.  621;  Johnson  v.  Baber,  22  Beav.  562; 
6  De  G.,  M.  &  G.  43!) ;  Parshall's  App.,  65  Benn.  St.  233;  Ellis  r.  Barker, 
L.  R.  7  Ch.  104;  Sloo  v.  Law,  3  Blatch.  C.  C.  457;  Williams  v.  Stevens, 
L.  R.  1  P.  C.  352. 

'^  Webb  ('.  Shaftesbury,  7  Ves.  480;  Hutchinson  v.  Morritt,  3  Y.  & 
C.  47. 

8  Sugden  v.  Crossland,  3  Sm.  &  Gif.  102. 

*  Farley  v.  St.  Paul  M.  &  M.  Rd. ;  4  McCrary  (U.  S.),  142. 

6  Sloo  V.  Law,  3  Blatch.  C.  C.  457. 

GOl 


§  428.]  GENERAL   DUTIES   OF  TRUSTEES.  [CHAP.   XIV. 

price.     This  is  not  dealing  with  the  trust  for  his  private 
gain.  1 

§  428.  A  trnstce,  executor,  or  assignee  cannot  buy  up  a 
debt  or  incumbrance  to  which  the  trust  estate  is  liable,  for 
less  than  is  actually  due  thereon,  and  make  a  profit  to  him- 
self; but  such  purchase  inures  for  the  benefit  of  the  trust 
estate,  and  the  creditors,  legatees,  and  cestuis  que  trust  shall 
have  all  the  advantage  of  such  purchase. ^  But  if  a  trustee 
buys  up  an  outstanding  debt  for  the  benefit  of  the  cestuis  que 
trust,  and  they  refuse  to  take  it  or  to  pay  the  purchase- 
money,  they  cannot  afterwards,  when  the  purchase  turns  out 
to  be  beneficial,  claim  the  benefit  for  themselves.  ^  Nor  can 
the  trustee  make  any  contract  with  the  cestui  que  trust  for 
any  benefit,  or  for  the  trust  property,  nor  can  he  accept  a 
gift  from  the  cestui  que  trust.^  The  better  opinion,  however, 
is,  that  a  trustee  may  purchase  of  the  cestui  que  trust,  or 
accept  a  benefit  from  him,  bat  the  transaction  must  be  beyond 
suspicion ;  and  the  burden  is  on  the  trustee  to  vindicate  the 
bargain  or  gift  from  any  shadow  of  suspicion,  and  to  show 
that  it  was  perfectly  fair  and  reasonable  in  every  respect, 
and  courts  will  scrutinize  the  transaction  with  great  sever- 
ity.^ (a)     So,  if  a  trustee  buys  the  trust  property  at  private 

1  Cogbill  r.  Boyd,  77  Va.  450. 

2  Robinson  v.  Pett,  3  P.  Wms.  251,  n.  (a) ;  Pooley  v.  Quilter,  4  Drew. 
184;  2  De  G.  &  J.  327;  Morret  v.  Paske,  2  Atk.  54 ;  Dunch  v.  Kent,  1  Vein. 
241;  Darcy  v.  Hall,  id.  49;  Ex  parte  Lacey,  6  Ves.  628;  Anon.  1  Salk. 
155 ;  Fosbrooke  v.  Balguy,  1  Myl.  &  K.  226 ;  Carter  i-.  Home,  1  Eq.  Cas. 
Ab.  7;  Schoonmaker  v.  Van  Wyke,  31  Barb.  457;  Matter  of  Oakley, 
2  Edw.  478;  Herr's  Est.,  1  Grant's  Cas.  272;  Quackenbush  v.  Leonard, 
9  Paige,  334  ;  Slade  v.  Van  Vechten,  11  Paige,  21 ;  Barksdale  v.  Finney, 
14  Grat.  338 ;  King  v.  Cushman,  41  111.  31. 

3  Barwell  v.  Barwell,  34  Beav.  371. 

4  Vaughton  v.  Noble,  30  Beav.  34;  Baxter  v.  Costin,  1  Busb.  Eq.262; 
Andrews  v.  Ilobson,  23  Ala.  219 ;  Mason  v.  Martin,  4  ]\Id.  124 ;  Green  v. 
Winter,  1  Johns.  Ch.  26;  Spindler  v.  Atkinson,  3  Md.  409;  Wiswall  v. 
Stewart,  3  Ala.  433. 

5  Ex  parte  Lacey,  6  Ves.  626;  Scott  v.  Davis,  1  Myl.  &  Cr.  87;  Coles 
y.  Trecothick,  9  Ves.  234;    Morse   v.   Royal,   12  Ves.  372;    Dunlop  ,u 

(a)  Williamson  v.  Kohn,  66  F.  R.  55;   Avery  v.  Avery,  90  Ky.  613; 
infra,  §  828,  n. 
602 


CHAP.   XIV.]  TRUSTEES   CAN  MAKE   NO   PROnT.  [§  429. 

sale  or  puljlic  auction,  he  takes  it  subject  to  the  right  of  the 
cestui  que  trust  to  have  the  sale  set  aside,  or  to  claim  all  tlie 
benefits  and  profits  of  the  sale  for  himself.^  (a) 

§  429.  Trustees  cannot  make  a  profit  from  the  trust  funds 
committed  to  them,  by  using  the  money  in  any  kind  of  trade 
or  speculation,  nor  in  their  own  business;  nor  can  they  put 
the  funds  into  the  trade  or  business  of  another,  under  a  stip- 
ulation that  they  shall  receive  a  bonus  or  other  profit  or 
advantage.  In  all  such  cases,  the  trustees  must  account  for 
every  dollar  received  from  the  use  of  the  trust-money,  and 
they  will  be  absolutely  responsible  for  it  if  it  is  lost  in  any 
such  transactions.  By  this  rule,  trustees  may  be  liable  to 
great  losses  while  they  can  receive  no  profit;  and  the  rule  is 
made  thus  stringent,  that  trustees  may  not  be  tempted  from 
selfish  motives  to  embark  the  trust  fund  upon  the  chances  of 
trade  and  speculation. ^     If  a  trustee  charge  a  bonus  in  his 

Mitchell,  10  Ohio,  17 ;  Harrington  v.  Brown,  5  Pick.  519 ;  Bolton  v. 
Gardner,  3  Paige,  273 ;  Ames  v.  Downing,  1  Bradf .  321  ;  Lyon  v.  Lyon,  8 
Ired.  Eq.  201 ;  Pennock's  App.,  14  Peun.  St.  416  ;  Bruch  v.  Lautz,  2  Rawie, 
392 ;  Stuart  r.  Kissam,  2  Barb.  493  ;  Jones  v.  Smith,  33  Miss.  215;  Soller 
r.  Chandler,  26  Miss.  154 ;  Ilerne  v.  Meeres,  1  Vern.  465 ;  Smith  v.  Isaac, 
12  Mo.  106;  ante,  §195. 

^  Beeson  v.  Beeson,  9  Barr,  279  ;  Patton  v.  Thompson,  2  Jones,  Eq. 
285 ;  Mason  v.  Martin,  4  Md.  124 ;  Spindler  v.  Atkinson,  3  Md.  409 ; 
Davoue  v.  Fanning,  2  Johns.  Ch.  252 ;  Iddings  v.  Bruer,  4  Sandf.  Ch. 
222;  Hendricks  r.  Robinson,  2  Johns.  Ch.  283;  Evertson  r.  Tappan,  5  id. 
497 ;  Smith  v.  Lansing,  22  N.  Y.  530  ;  Ames  v.  Downing,  1  Bradf.  321  ; 
Andrews  v.  Hobson,  23  Ala.  219  ;  Charles  v.  Dubois,  29  Ala.  367  ;  Wiswall 
V.  Stewart,  32  Ala.  433 ;  Bellamy  v.  Bellamy,  6  Fla.  62 ;  Schoonmaker  v. 
Van  Wyke,  31  Barb.  457. 

2  Docker  v.  Somes,  2  Myl.  &  K.  661 ;  "Willett  r.  Blanford,  1  Hare,  253; 
Cummins  v.  Cummins,  G  Ir.  Eq.  723  ;  Wedderburn  v.  Wedderburn,2Keen, 
722 ;  4  Myl.  &  Cr.  41 ;  22  Beav.  84 ;  Townend  v.  Townend,  1  Gif.  201 ; 
Parker  v.  Bloxam,  20  Beav.  295 ;  Manning  v.  Manning,  1  Johns.  Ch.  527 ; 
Brown  v.  Ricketts,  4  id.  303 ;  In  re  Thorp,  Davies,  290 ;  William  v. 
Stevens,  L.  R.  1  P.  C.  352;  Blauvelt  v.  Ackerman,  20  N.  J.  Eq. ;  Dur- 

(d)  De  Chambrun  i\  Cox,  60  F.  R.     v.  Northrop,  30  Fla.  612 :  Mullen  r. 
471;  Mills  r.   Mills,  63  F.  R.  511;     Doyle,  147  Penn.  St.  512;  Cusliman 
Darling  v.  Potts,  118  Mo.  506;  Cole    v.  JBonfield,  139  111.  219. 
V.  Stokes,  113  N.  C.  270;  Anderson 

603 


§  431  ]  GENERAL  DUTIES   OF  TRUSTEES.  [CHAP.   XIV. 

account  for  his  skill  and  services  in  conducting  the  business 
of  the  trust,  it  will  be  set  aside.  ^ 

§  430.  All  persons  who  stand  in  a  fiduciary  relation  to 
others  must  account  for  all  the  profits  made  upon  moneys  in 
their  hands  by  reason  of  such  relation. ^  Thus  partners  stand 
in  a  fiduciary  relation  to  each  other,  and  if  a  partner,  instead 
of  winding  up  the  partnership  affairs,  when  for  any  reason 
he  ought  to  do  so,  continues  to  use  the  partnership  property 
in  business,  and  makes  a  profit  thereon,  he  must  account  for 
it.^  But  in  making  up  the  accounts,  courts  will  make  a  just 
allowance  for  time,  skill,  and  other  elements  of  success  in 
conducting  the  business.*  If  a  trader  has  trust  funds  in  his 
hands,  not  in  a  fiduciary  character,  but  through  a  breach  of 
trust  by  a  trustee,  he  is  liable  only  for  interest.^  Agents, 
guardians,  directors  of  corporations,  officers  of  municipal 
corporations,  and  all  other  persons  clothed  with  a  fiduciary 
character,  are  subject  to  this  rule.^ 

§  431.  So  if  persons,  standing  in  such  a  relation  to  an 
estate,  obtain  advantages  in  respect  to  it,  those  who  succeed 

ling  V.  Hammer,  id.  220  ;  Pluman  v.  Slocum,  41  N.  Y.  53  ;  Frank's  App., 
5  Peun.  St.  190. 

1  Barrett  v.  Hartly,  L.  R.  2  Eq.  789. 

2  Hawley  v.  Cramer,  4  Cow.  717;  Richardson  v.  Spencer,  18  B.  Mon. 
450  ;  Thorp  v.  McCullum,  1  Gil.  (111.)  615 ;  Van  Epps  v.  Van  Epps,  9  Paige, 
237 ;  Ackerman  v.  Emot,  4  Barb.  626. 

8  Bentley  v.  Craven,  18  Beav.  75 ;  Parsons  v.  Hayward,  31  Beav.  199 ; 
Crawshay  v.  Collins,  15  Ves.  226;  Brown  v.  De  Tastet,  Jac.  284;  Wedder- 
burn  V.  Wedderburn,  2  Keen,  722;  4  Myl.  &  Cr.  41;  22  Beav.  84.  A  part- 
ner who  receives  the  partnership  property  on  a  resale  from  the  purchaser 
at  public  auction,  by  a  secret  arrangement  between  them,  is  bound  to 
account  as  if  no  sale  had  been  made,  although  his  copartner  was  a  bidder 
at  the  auction  sale.     Jones  v.  Dexter,  130  Mass.  380. 

4  Docker  v.  Somes,  2  Myl.  &  K.  662;  Willett  v.  Blanford,  1  Hare,  253; 
Brown  v.  De  Tastet,  Jac.  284. 

5  Strowd  V.  Gwyer,  28  Beav.  130;  Townend  v.  Townend,  1  Gif.  210; 
Simpson  v.  Chapman,  4  De  G.,  M.  &  G.  154  ;  Macdonald  v.  Richardson, 
1  Gif.  81;  Brown  v.  De  Tastet,  Jac.  284;  Chambers  v.  Howell,  11  Beav. 
6;  Ex  parte  Watson,  2  V.  &  B.  414. 

«  Morret  v.  Paske,  2  Atk.  52;  Powell  v.  Glover,  3  P.  Wms.  251;  Great 
604 


CIIAP.    XIV.]         TKUSTEES   CAN   MAKE   NO    I'KOFIT.  [§  431. 

to  the  estate  sliall  have  the  advantages  which  arc  thus  ob- 
tained.^ As  where  a  mortgagee  had  jjurchased  tiie  riglit  of 
dower  of  the  widow  of  a  deceased  mortgagor,  the  heir  of  the 
mortgagor,  upon  a  bill  to  redeem,  was  held  to  have  the  right 
to  take  the  purchase  of  the  dower  at  the  price  whicli  the 
mortgagee  had  paid.^  So  an  heir  cannot  hold  an  incum- 
brance for  more  than  he  gave  for  it,  against  the  creditors  of 
the  ancestor's  estate,^  and  it  is  conceived  that  the  same  rule 
applies  to  a  devisee*  But  if  the  heir  or  devisee  is  himself 
an  incumbrancer  at  the  death  of  the  ancestor,  he  may  buy  in 
a  prior,  but  not  a  subsequent,  incumbrance,  and  hold  it  for 
the  whole  amount  due.  The  court  considers  him,  in  buying 
such  a  prior  incumbrance,  not  as  heir  or  devisee,  but  as  an 
incumbrancer  or  stranger;  and  so  if,  as  such  prior  incumbran- 
cer, he  obtains  a  prior  incumbrance  by  the  bounty  or  gift  of 
another,  he  shall  hold  such  bounty  or  gift  for  the  benefit  of 
his  own  incumljrance,  and  there  is  no  reason  why  he  should 
hold  it  for  the  benefit  of  the  creditors  of  the  ancestor.^  So 
the  heir  or  devisee  may  hold  a  prior  incumbrance  for  full 
value,  though  bought  for  less,  against  a  subsequent  incum- 
brancer.^ So,  if  one  of  several  joint  purchasers  of  an  estate 
buy  in  an  incumbrance  for  less  than  its  face,  he  shall  hold 
it  for  his  copurchasers  at  the  same  price  he  paid.'^  And 
the  opinion  has  been  expressed,  that  a  tenant  for  life  holds 
the  same  relation  toward  the  remainder-man;  and  if  such 
tenant  buy  in  an  incumbrance  upon  the  estate  for  less  than 

Luxembourg  Ry.  Co.  v.  Magnay,  23  Beav.  640;  25  Beav.  586 ;  Chaplin  r. 
Young,  33  Beav.  414;  Bowes  v.  Toronto,  11  Moore,  P.  C.  C.  463;  Docker 
V.  Somes,  2  Myl.  &  K.  665. 

1  Baldwin  v.  Bannister,  cited  3  P.  Wms.  251 ;  Dobson  r.  Land,  8  Hare, 
220 ;  Arnold  v.  Garner,  2  Phill.  231 ;  Matbison  r.  Clarke,  3  Drew.  3. 

2  Il)id. 

8  Lancaster  v.  Evors,  10  Beav.  154  ;  1  Phill.  354;  Morret  r.  Paske, 
2  Atk.  54;  Long  v.  Clopton,  1  Vern.  464;  Brathwaite  v.  Brathwaite,  id. 
334;  Darcy  V.  Hall,  id.  49. 

*  Long  V.  Clopton,  1  Vern.  464 ;  Davis  v.  Barrett,  14  Beav.  542. 

6  Davis  V.  Barrett,  14  Beav.  542 ;  Darcy  v.  Hall,  1  Vern.  49  ;  Anon. 
1  Salk.  155. 

8  Davis  V.  Barrett,  14  Beav.  542. 

'  Carter  v.  Home,  1  Eq.  Cas.  Ab.  7. 

605 


§  432.]  GENERAL   DUTIES   OF   TRUSTEES.  [CHAP.    XIV. 

its  face,  he  cannot  claim  from  the  remainder-man  more  than 
he  gave.-^ 

§  432.  The  rule  that  trustees  can  make  no  profit  out  of  the 
estate  is  carried  so  far  in  England  that  they  can  receive  no 
compensation  for  their  services.  In  the  United  States,  trus- 
tees are  entitled  to  reasonable  compensation.  But  both  in 
England  and  the  United  States,  a  trustee  can  receive  no  in- 
direct profit  from  the  estate  by  reason  of  his  connection  with 
it.  Thus  a  trustee  cannot  be  appointed  receiver  with  a 
salary, 2  nor  would  he  be  appointed  without  compensation  ex- 
cept under  peculiar  circumstances ;  for  it  is  his  duty  to  super- 
intend and  watch  over  the  receiver.^  The  same  reasons  do 
not  apply  for  excluding  a  dry  trustee.^  If  trustees  are  fac- 
tors,^ or  brokers,^  or  commission  agents,^  or  auctioneers,*  or 
bankers,^  or  attorneys,  or  solicitors,  ^^  they  can  make  no 
charges  against  the  trust  estate  for  services  rendered  by  them 
in  their  professional  capacity  to  the  estate  of  which  they  are 
trustees.  They  may  employ  the  services  of  such  agents,  if 
necessary,  and  pay  for  them  from  the  estate;  but  if  they 
undertake  to  act  in  such  capacities  themselves  for  the  estate, 
they  can  receive  no  compensation.  This  rule  is  so  strict, 
that  if  the  trustee  has  a  partner,  and  employs  such  partner, 

1  Hill  V.  Brown,  Dr.  433. 

2  Sutton  V.  Jones,  15  Ves.  584;  Morison  v.  Morison,  4  Myl.  &  Cr.  215; 

Sykes  v.  Hastings,  11  Ves.  363;  v.  Jolland,  8  Ves.  72;  Anon.  3  Ves. 

515. 

3  Sykes  v.  Hastings,  11  Ves.  363. 
*  Sutton  V.  Jones,  15  Ves.  587. 

5  Scattergood  v.  Harrison,  Mos.  128. 
«  Arnold  v.  Garner,  2  Phill.  231. 

7  Sheriff  v.  Aske,  4  Russ.  33. 

8  Mathison  v.  Clarke,  3  Drew.  3;  Kirkman  v.  Booth,  11  Beav.  273. 

9  Crosskill  v.  Bower,  1  Dr.  &  Sm.  319. 

10  Pollard  v.  Doyle,  1  Dr.  &  Sm.  319  ;  IMoore  v.  Frowd,  3  Myl.  &  Cr 
46;  Frazer  v.  Palmer,  4  Y.  &  C.  515;  York  v.  Brown,  1  Col.  C  C.  260 
Broughton  v.  Broughton,  5  De  G.,  INI.  &  G.  160;  In  re  Sherwood,  3  Beav 
338 ;  Douglass  v.  Archbutt,  2  De  G.  &  J.  148  ;  Harbin  v.  Darby,  28  Beav 
325 ;  Morgan  v.  Homans,  49  N.  Y.  667  ;  Gomley  v.  Wood,  9  Ir.  Eq.  418; 
Binsse  v.  Paige,  1  Keyes,  87 ;  1  N.  Y.  Decis.  138. 
606 


CHAP.    XIV.]  TRUSTEES   CAN   MAKE    NO    PKOFIT.  [§  433. 

no  charge  can  be  made  by  the  firm;^  but  if  the  trustee  is 
exchidcd  from  all  participation  in  the  compensation,  the 
partner  of  the  trustee  may  be  paid  like  any  other  person  for 
similar  services.  ^  In  one  case  where  several  trustees  were 
made  defendants,  one  of  them,  being  a  solicitor,  conducted 
the  defence,  and  was  allowed  his  full  costs,  it  not  appearing 
that  the  costs  were  increased  by  such  conduct.^  This  case 
is  put  upon  the  ground  that  the  services  were  rendered  under 
the  eye  of  the  court,  and  there  could  be  no  danger  of  collu- 
sion ;  but  the  case  is  not  approved  in  England,  and  has  not 
been  followed.^  In  the  United  States,  a  trustee  has  been  re- 
fused compensation  as  solicitor,  for  professional  services 
rendered  by  himself  for  himself  as  trustee,  on  the  ground  that 
no  man  can  make  a  contract  with  himself.^  (a) 

§  433.  Under  no  circumstances  can  a  trustee  claim  or  set 
up  a  claim  to  the  trust  property  adverse  to  the  cestui  que 
trust.^     Nor  can  he  deny  his  title. '^  (h)     If  a  trustee  desires  to 

1  Collin  V.  Carey,  2  Beav.  128  ;  Lincoln  v.  Wmsor,  9  Hare,  158;  Chris- 
tophers V.  White,  10  Beav.  523 ;  Lyon  v.  Baker,  5  De  G.  &  Sm.  622 ; 
Mauson  v.  Baillie,  2  Macq.  (H.  L.)  80. 

2  Clack  V.  Carlon,  7  Jur.  (n.  s.)  441 ;  Burge  v.  Burton,  2  Hare,  373. 

8  Cradock  r.  Piper,  1  McN.  &  G.  664 ;  1  Hall  &  T.  617,  overruling 
Bainbrigge  v.  Blair,  8  Beav.  588. 

*  Lyon  V.  Baker,  5  De  G.  &  Sm.  622. 

^  Mayer  v.  Galluchet,  6  Rich.  Eq.  2 ;  Jenkins  v.  Fickling,  4  Des.  470; 
Edmonds  v.  Crenshaw,  Harp.  232. 

6  Att.  Gen.  v.  Monro,  2  De  G.  &  Sm.  163;  Stone  r.  Godfrey,  5  De  G., 
M.  &  G.  76;  Frith  r.  Curtland,  2  Hem.  &  ]M.  417;  Pomfret  v.  Winsor,  2 
Ves.  476 ;  Kennedy  r.  Daley,  1  Sch.  &  Lef .  381 ;  Ex  parte  Andrews,  2  Rose, 
412;  Conry  v.  Caulfield,  2  B.  &  B.  272;  Newsome  v.  Flowers,  30  Beav. 
461;  Shields  v.  Atkins,  3  Atk.  560;  Langley  v.  Fisher,  9  Beav.  90;  Reece 
V.  Frye,  1  De  G.  &  Sm.  279 ;  Benjamin  r.  Gill,  45  Ga.  110. 

'  Von  Hurter  r.  Spergeman,  2  Green,  Ch.  185. 

(a)  "  When  it  is  once  admitted  not  his  duty  to  render."     Holmes, 

that    a  trustee    may  be    paid    for  J.,   in   Turnbull   v.    Pomeroy,    140 

ordinary  services,  it  is  hard  not  to  Mass.  117,  118;  see  also  Perkins's 

admit  also  that  there  may  be  cir-  Appeal,  108  Penn.  St.  314;   infra, 

cumstances  under  which  he  may  be  §  918. 

allowed  an  additional  sum  for  ex-  (5)  Associate  Alumni  v.  General 

traordinary  services  which   it  was  Theol.  Seminary,  49  N.  Y.  S.  745. 

607 


§  433.]  GENERAL   DUTIES   OF   TRUSTEES.  [CHAP.    XIV. 

set  up  a  title  to  the  trust  property  in  himself,  he  should 
refuse  to  accept  the  trust.  But  if  a  claim  is  made  upon  him 
by  a  third  person,  adverse  to  the  cestui  que  trust,  he  may  de- 
cline to  deliver  over  the  property  to  his  cestui  que  trust  until 
the  title  is  determined,  or  he  is  indemnified  or  secured 
against  the  consequences,^  or  he  may  pay  the  fund  into  court,^ 
and  if  he  neglects  to  do  so,  and  thus  makes  a  suit  necessary, 
he  will  recover  only  such  costs  as  he  would  have  been  enti- 
tled to  if  he  had  paid  the  money  into  court. ^  A  trustee  must 
assume  the  validity  of  the  trust  under  which  he  acts,  until 
it  is  actually  impeached,  although  he  may  have  some  suspi- 
cion that  there  may  have  been  fraud  or  collusion  in  the  ap- 
pointment and  settlement.*  (a)  So,  if  a  trustee  obtains  a 
knowledge  of  facts  that  would  defeat  the  title  of  his  cestui 
que  trust,  and  give  the  property  over  to  another,  he  is  not 
justified  in  morals  in  communicating  such  facts  to  such  other 
person.  His  duty  is  to  manage  the  property  for  his  cestui 
que  trust,  and  not  to  keep  his  conscience,  or  betray  his  title 
or  interests;^  and  he  can  make  no  admissions  prejudicial  to 
the  rights  of  his  cestid  que  trust,^  nor  can  he  use  his  influ- 
ence to  defeat  the  purposes  of  the  trust  as  declared  by  the 
creator  of  it.'^ 

1  Neale  v.  Davies,  5  De  G.,  M.  &  G.  258. 

2  Gunnell  v.  Whitear,  L.  R.  10  Eq.  661. 

8  Ibid. ;  Weller  v.  Fitzhugh,  22  L.  T.  (n.  s.)  567. 

*  Beddoes  v.  Pugh,  26  Beav.  407 ;  Reid  v.  Mullins,  48  Mo.  344. 

6  Lewin,  234. 

«  Thomas  v.  Bowman,  30  111.  34;  29  111.  426. 

'  Ellis  V.  Barker,  L.  R.  7  Ch.  104. 

(a)  A  party  to  a  contract,  who  Harbin  v.  BeU,  54  Ala.  389  ;  Saun- 
seeks  to  be  relieved  therefrom,  and  ders  v.  Richards,  35  Fla.  28,  42. 
relies  upon  its  illegality  or  want  of  In  Thomson  v.  Eastwood,  2  A.  C. 
consideration,  may  be  estopped  from  215,  233,  Lord  Cairns,  L.  C,  held 
setting  up  such  a  defence,  and  a  a  trustee,  not  proved  to  be  charge- 
trustee  who  has  accepted  and  entered  able  with  personal  fraud,  liable  for 
upon  the  administration  of  the  trust,  denying,  unconscionably  and  upon 
cannot  allege  the  invalidity  of  his  untenable  grounds,  his  beneficiary's 
appointment  as  a  reason  for  not  title  to  trust-money,  and  thus  post- 
accounting  for  the  trust  property,  poning  full  payment. 
608 


CHAP.    XIV.]  TRUSTEES    CAN    MAKE    NO    PROFTT.  [§  435. 

§  434.  In  England,  a  trustee,  being  in  possession  of  real 
estate  in  trust,  may  profit  from  his  trust  if  the  cestui  que 
trust  dies  without  heirs ;  for,  as  the  trustee  is  tenant  in  pos- 
session, there  is  no  such  faihire  of  a  tenant  as  to  cause  an 
escheat;  and  the  trustee  thenceforth  holds  the  lands  for  his 
own  use,  there  being  no  cestui  que  trust  to  call  liim  to  an 
account.^  This  is  a  benefit  to  the  trustee ;  but  it  arises  rather 
from  an  absence  of  right  in  others,  than  from  an  afTirmative 
right  in  himself.  But  if  he  is  not  in  possession,  or  if  he 
has  need  of  the  assistance  of  a  court  of  equity  to  enforce  his 
rights,  the  court  will  not  act;^  though  it  is  said,  that  having 
the  legal  title,  which  a  court  of  law  must  recognize,  he  can 
obtain  all  the  rights  which  a  court  of  law  must  give.^  But 
if  the  cestui  que  trust  devise  the  estate  to  another  upon  trusts 
that  fail,  the  trustee  must  pass  over  the  estate  to  the  devisee, 
for  the  reason  that  the  trustee  can  have  no  advantage  from 
trusts  that  so  fail,  and  be  has  no  equity  against  the  devisee 
to  keep  the  estate.^ 

§  435.  Upon  this  rule  of  law  in  England,  several  questions 
were  started  in  the  case  of  Burgess  v.  Whcate,^  which  are 
rather  curious  than  practical  in  this  country;  as,  for  in- 
stance, if  a  purchaser  should  pay  the  money  in  full  for  land, 
and  die  without  heirs,  before  he  obtained  a  conveyance,  could 
the  vendor  keep  both  land  and  purchase-money?^  Again,  if 
a  mortgagor  in  fee  should  die  without  heirs,  could  a  mort- 
gagee in  fee  keep  the  whole  estate,  for  the  reason  that  there 
was  no  person   having  a  right  to  redeem? "     Of  course  the 

1  Burgess  v.  Wheate,  1  Eden,  177,  186,  216,  256;  Taylor  r.  Haygarth, 
U  Sim.  8;  Daval  v.  New  River  Co.,  3  De  G.  &  Sm.  394;  Cox  r.  Parker, 
22  Beav.  168 ;  Barrow  v.  Wadkin,  24  Beav.  9 ;  Att.  Gen.  v.  Sands,  Hard. 
496. 

2  Burgess  v.  Wheate,  1  Eden,  212  ;  Onslow  r.  Wallis,  1  McN.  &  G.  506  ; 
Williams  v.  Lonsdale,  3  Ves.  Jr.  752. 

8  King  V.  Coggan,  6  East,  431 ;  2  Smith,  417 ;  King  v.  Wilson,  10  B.  & 
C.  80. 

*  Onslow  V.  Wallis,  1  McN.  &  G.  506 ;  Jones  v.  Goodchild,  3  P.  Wms. 
33. 

6  1  Eden,  177. 

6  Ibid.  212.  7  ji[^  210. 

VOL.  I. —39  609 


§  437  a.]  GENERAL   DUTIES    OF   TRUSTEES.  [CHAP.    XIV. 

equity  of  redemption  would  be  assets  for  the  payment  of  the 
debts  of  the  mortgagor.  ^  But  if  there  were  no  debts,  could 
the  mortgagee  keep  a  large  estate  for  a  small  debt?  ^  Another 
question  was  raised,  whether  a  trust  in  such  cases  might  not 
result  to  the  grantor.  ^  No  answers  have  been  given  to 
these  questions  by  decided  cases,  and  as  they  were  put  more 
than  a  century  ago,  it  is  not  probable  that  a  case  will  arise 
requiring  their  judicial  determination. 

§  436.  In  the  United  States,  if  a  cestui  que  trust  should 
die  without  heirs,  the  trustee  could  not  hold  for  his  own 
beneficial  use ;  but  he  would  hold  for  the  State  as  ultima 
hceres  where  all  other  heirs  fail.* 

§  437.  Where  a  eestui  que  trust  of  chattel  dies  without 
heirs,  the  trustee  can  take  no  benefit ;  for  the  beneficial  use 
in  such  chattel  will  go  as  bona  vacantia  to  the  crown  or  State. 
So,  if  the  cestui  que  trust  makes  a  will  and  appoints  an  exec- 
utor, but  makes  no  further  disposition  of  his  personalty,  the 
executor  will  take  for  the  State ;  for  the  executor  can  take  no 
beneficial  interest  unless  the  will  expressly  gives  it  to  him.'^ 

§  437  a.^  Payment  of  a  trust  debt  by  crediting  the  trus- 
tee's individual  account  is  not  good.''  A  trustee  may  in  good 
faith  compromise  a  doubtful  debt  due  the  trust  estate,  and  a 
fraud  committed  by  him  upon  others  is  admissible  to  show 
his  zeal  for  the  interests  of  the  estate.^     But  a  compromise 

1  Beale  v.  Symonds,  16  Beav.  406;  Downe  v.  Morris,  3  Hare,  394. 

2  1  Eden,  236,  256. 

3  1  Eden,  185. 

4  McCaw  V.  Galbraith,  7  Rich.  L.  75;  Matthews  v.  Ward,  10  G.  &  J. 
443  ;  Darrah  v.  McNair,  1  Ashra.  236 ;  Ringgold  v.  Malott,  1  Harr.  &  John. 
299 ;  4  Kent,  425 ;  1  Cruise,  Dig.  484 ;  Crane  i'.  Reeder,  21  Md.  25. 

6  Middleton  v.  Spicer,  1  Bro.  Ch.  201 ;  Taylor  v.  Haygarth,  14  Sim.  8; 
Russell  V.  Clowes,  2  Col.  C.  C.  048  ;  Powell  v.  Merritt,  1  Sm.  &  Gif.  381 ; 
Cradock  v.  Owen,  2  Sm.  &  Gif.  241 ;  Read  v.  Steadham,  26  Beav.  495 j 
Cane  v.  Roberts,  8  Sim.  214. 

«  See  §  815  a,  815  b. 

7  INIaynard  v.  Cleveland,  76  Ga.  52. 

8  Id.  68  et  seq. 

610 


CHAP.    XIV.]  TRUSTEES    CAN    MAKE    NO    PROFIT.  [§  437  a. 

of  a  debt  due  from  the  trust  by  which  an  advantage  is  gained, 
as  where  a  legatee  accepted  81100  for  a  -SSOOO  legacy,  inures 
to  the  bene  lit  of  the  trust  estate,  and  the  trustee  cannot  trans- 
fer the  whole  gain  to  one  of  the  cestuia.  ^  A  trustee  to  sue  for 
and  recover  certain  property  may  make  a  fair  and  judicious 
compromise  by  which  the  title  is  secured  to  the  ceatui.'^ 
Church  trustees  cannot,  by  their  acts,  create  any  lien  on  the 
trust  property  unless  they  have  express  authority  for  so 
doing."  A  trustee  can  be  held  personally  for  materials 
ordered  by  him  for  the  trust  estate,  and  on  contracts  made 
by  him  in  its  behalf,  unless  there  be  a  special  agreement  to 
look  only  to  the  trust,  and  this  even  though  the  trustee  acted 
under  order  of  the  court,  this  being  merely  a  security  to  the 
trustee  that  he  shall  be  indemnified  out  of  the  trust  funds.*  {a) 

1  Mitchell  V.  Colburn,  61  Md.  244. 

2  Caldwell  c.  Brown,  66  Md.  293. 

8  Trustees  First  M.  E.  Church  v.  Atlanta,  76  Ga.  181. 
*  Gill  V.  Carmine,  55  Md.  339 ;  Hackman  v.  MaGuire,  20  Mo.  App. 
286;  People  v.  Abbott,  107  N.  Y.  225;  Kedian  v.  Hoyt,  33  Ilun,  145. 


(a)  See  15  Am.  L.  Rev.  449; 
1  Ames  on  Trusts  (2d  ed.),  423, 
432;  Fehlingerr.  Wood,  134  Penn. 
St.  517;  U.  S.  Mortgage  Co.  v. 
Sperry,  138  U.  S.  313;  Taylor  v. 
Davis,  no  U.  S.  330;  Packard  v. 
Kingman,  109  Mich.  497  ;  ^Mitchell 
V.  Whitlock,  121  N.  C  160 ;  Yerkes 
V.  Richards,  170  Penn.  St.  .340; 
Wright  I'.  Franklin  Bank  (Ohio), 
51  N.  E.  876;  Crate  v.  Luippold, 
43  N.  Y.  S.  824;  Poindexter  v. 
Burwell,  82  Va.  507;  Conally  v. 
Lyons,  82  Texas,  064 ;  30  L.  R.  An. 
119.  A  judgment  against  a  trustee 
personally  is  not  a  lien  on  land  to 
which  he  holds  title  subject  to  an 
express  or  resulting  trust.  School 
District  i'.  Peterson  (^linn.),  76 
N.  W.   1126;    Wright  v.  Franklin 


Bank  (Ohio),  51   X.  E.  876.     See 
supra,  §  346. 

Trustees  are  liable  for  their  torts 
committed  in  discharging  their 
duties  as  trustees,  and  not  the  trust 
estate.  Norling  v.  Allee,  10  N.  Y.  S. 
.97;  13  id.  791;  Odd  Fellows  Hall 
Ass'n  V.  McAllister,  153  Mass.  292; 
Shepard  v.  Craemer,  160  Mass.  490; 
1  Ames  on  Trusts  (2d  ed.),  494, 
499,  n.  So  are  executors.  Parker 
V.  Barlow,  93  Ga.  700;  Tucker  v. 
Nebeker,  2  App.  D.  C.  326.  In 
Keating  v.  Stevenson,  47  N.  Y.  S. 
847,  it  was  intimated  that,  when  the 
tru.stees  are  sued  as  such,  for  negli- 
gence causing  personal  injury,  they 
cannot  be  held  to  answer  personally 
in  the  same  suit  by  amendment. 
See  also  Ferrier  v.  Trdpannier,  24 
Can   Sup.  86. 

611 


§  ^37  b.] 


GENERAL   DUTIES   OF   TRUSTEES.         [CHAP.   XIV. 


But  the  mere  fact  of  want  of  authority  in  a  trustee  to  bind 
the  estate  will  not  make  him  personally  liable  in  cases  of 
executory  contract  where  the  facts  show  that  no  such  liability 
was  intended  by  either  of  the  parties.^  (a)  A  trustee  with 
absolute  control  can  give  a  license  for  his  life  to  a  railway 
company  to  use  the  land  for  a  roadbed.  ^  A  trustee  cannot 
go  beyond  the  purposes  of  the  trust  deed  and  bind  the  estate.  ^ 

§  437  b.  Though  "  trustee  "  be  added  to  the  signature  of  a 
note  or  bond  it  may  be  mere  descriptio  personce,  and  the  obli- 
gation individual.*  And,  on  the  other  hand,  although  the 
signature  of  a  receipt  be  merely  that  of  the  trustee  as  an  in- 
dividual, the  receipt  may  be  really  given  as  trustee  and  bind 
the  cestuis.^  A  note,  though  not  signed  as  trustee,  will,  as 
between  the  cestui  and  the  trustee,  be  the  obligation  of  the 
former  if  the  debt  was  properly  incurred  for  its  benefit.^ 


1  Michael  v.  Jones,  84  Mo.  578. 

2  Tutt  V.  R.  R.  Co.,  16  S.  C.  365. 

8  Pracht  &  Co.  v.  Lange,  81  Va.  711. 

*  Cruselle  v.  Chastain,  76  Ga.  840 ;  Bowen  v.  Penny,  id.  743. 

6  Thomassen  v.  Van  Wyngaarden,  65  Iowa,  689. 

6  Bushong  V.  Taylor,  82  Mo.  660. 


(a)  A  trustee's  authority  to  bind 
the  estate  by  express  agreements  is 
limited  to  such  as  the  law  itself 
implies.  Durkin  v.  Langley,  167 
Mass.  577,  578. 

In  certain  States  he  is  by  statute, 
as,  e.  g.,  by  the  California  Civil  Code, 
§  2267,  made  general  agent  for  the 
estate,  in  which  case  his  contracts 


are  judged  by  his  own  authority  to 
perform  and  have  performed  the 
acts  contracted  for,  and  his  powers 
are  construed  in  favor  of  the  bene- 
ficiary. See  In  re  Courtier,  34  Ch. 
D.  136 ;  Sprague  v.  Edwards,  48 
Cal.  239  ;  Tyler  v.  Granger,  id.  259  ; 
Bushong  V.  Taylor,  82  Mo.  660. 


612 


CHAP.  XV.]  POSSESSION.  [§  438. 


CHAPTER  XV. 

POSSESSION  —  CUSTODY  —  CONVERSION  —  INVESTMENT  OP  TRUST 
PROPERTY,  AND  INTEREST  THAT  TRUSTEES  MAY  BE  MADE  TO 
PAY. 

§  438.     Duty  of  trustee  to  reduce  the  trust  property  to  possession. 

§  439.  Time  within  which  possession  should  be  obtained. 

§  440.  Diligence  necessary  in  acquiring  possession. 

§  441.     The  care  necessary  in  the  custody  of  trust  property. 

§  442.  In  what  manner  certain  property  should  be  kept. 

§  443.  Where  the  property  may  be  deposited. 

§§  444,  445.  How  money  must  be  deposited  in  bank. 

§  446.  Within  what  time  trustee  should  wind  up  testator's  establishment. 

§  447.  Trustee  must  not  mi.x  trust  property  with  his  own. 

§  448.     When  a  trustee  is  to  convert  trust  property. 

§  449.  General  rule  as  to  conversion. 

§  450.  When  a  court  presumes  an  intention  that  property  is  to  be  converted. 

§  451.  When  the  court  presumes  that  the  property  is  to  be  enjoyed  by  ces- 

tui que  trust  in  specie. 

§  452.     Of  investment. 

§  453.  As  to  investment  in  personal  securities. 

§  454.  As  to  the  employment  of  trust  property  in  trade,  business,  or  specu- 

lation. 

§  455.  Rule  as  to  investments  in  England. 

§  456.  Eule  in  the  United  States. 

§§  457,  458.     Rule  as  to  real  securities. 

§  459.  Of  investments  in  the  different  States. 

§§  460,  461,     Construction,  where  the  instruments  of  trust  direct  how  investments 
may  be  made. 

§  462.  Within  wliat  time  investments  must  be  made. 

§  463.  Trustees  must  not  mingle  their  own  money  in  investments. 

§  464.  Must  not  use  the  trust-money  in  business. 

§  405.  Original  investments  and  investments  left  by  the  testator. 

§  406.  Changing  investments. 

§  467.  Acquiescence  of  cestui  <]ue  trust  in  im])ropcr  investments. 

§  468.     Interest  that  trustees  must  pay  upon  trust  funds  or  any  dereliction  of 
duty. 

§  469.  When  he  is  directed  to  invest  in  a  particular  manner. 

§  470.  When  he  im])ro])erly  changes  an  investment. 

§  471.  When  compound  interest  will  be  imposed,  and  when  other  rules 

will  be  applied. 

§  472.  Rule  where  an  accumulation  is  directed. 

§  438.    The  first  duty  of  a  trustco,  after  his  appointment 
and  qualification  to  act,   is  to  secure  the  possession  of  the 

613 


§  438.]  COLLECTION.  [CHAP.  XV. 

trust  property  and  to  protect  it  from  loss  and  injury.  Until 
possession  is  properly  taken  by  the  trustee  the  grantor  is 
entitled  to  the  profits  of  the  estate.  ^  If  the  trust  property  is 
an  equitable  interest  or  estate,  he  must  give  notice  to  the 
holder  of  the  legal  title ;  and  if  he  cannot  have  the  legal  title 
transferred  to  himself,  he  must  take  such  steps  that  no  in- 
cumbrances can  be  put  upon  it  by  the  settlor  or  assignor.  If 
the  trust  fund  consists  in  part  of  notes,  bonds,  policies  of 
insurance,  and  other  similar  choses  in  action,  notice  should  be 
given  to  the  promisors,  obligors,  or  makers  of  the  instruments. 
This  is  the  general  rule  in  England  and  in  many  of  the 
United  States.  ^  (a)     In  some  States,  however,  it  is  held  that 

1  Frayser  v.  Rd.  Co.,  81  Va.  388. 

"^  Jacob  V.  Lucas,  1  Beav.  436 ;  Wright  v.  Dorchester,  3  Russ.  49,  n.; 
Timson  v.  Ramsbottora,  2  Keen,  35;  Forster  v.  Blackstone,  1  Myl.  &  K. 
297  ;  Roofer  v.  Harrison,  2  K.  &  J.  86 ;  Loveredge  v.  Cooper,  3  Russ.  30 ; 
Dearie  v.  Hall,  id.  1;  Meux  v.  Bell,  1  Hare,  73;  Stocks  v.  Dobson,  4  De 
G.,  M.  &  G.  11 ;  Voyle  v.  Hughes,  2  Sm.  &  Gif.  18;  Ryall  v.  Rowles,  1 
Ves.  348 ;  1  Atk.  165;  Dow  v.  Dawson,  1  Ves.  331 ;  3  Lead.  Cas.  Eq.  612; 
Jones  V.  Gibbons,  9  Ves.  410 ;  Thompson  v.  Spiers,  13  Sim,  469;  Waldron 
V.  Sloper,  1  Drew.  193;  Ex  parte  Boulton,  1  De  G.  &  J.  163;  Pierce  v. 
Brady,  23  Beav.  64  ;  Martin  v.  Sedgwick,  9  Beav.  333;  Evans  v.  Bicknell, 
6  Ves.  174;  Dunster  v.  Glengall,  3  Jr.  Eq.  47;  Forster  v.  Cockerell,  9 
Bligh  (n.  s.),  332  ;  3  CI.  &  Fin.  456 ;  Feltham  v.  Clark,  1  De  G.  &  Sm. 
307  ;  In  re  Atkinson,  2  De  G.,  M.  &  G.  140;  Mangles  v.  Dixon,  18  Eng. 
L.  &  Eq.  82;  Brashear  v.  West,  7  Pet.  608;  Stewart  v.  Kirkland,  19  Ala. 
162;  Cummings  v.  Fullara,  13  Vt.  134;  Northampton  Bank  v.  Balliet, 
8  Watts  &  S.  311;  Bean  v.  Simpson,  4  Shep.  49;  Phillips  v.  Bank  of 
Lewistown,  18  Penn.  St.  394 ;  Laughlin  v.  Fairbanks,  8  Mo.  367  ;  Campbell 
V.  Day,  16  Vt.  358;  Barney  v.  Douglass,  19  Vt.  98;  Ward  v.  Morrison,  25 
Vt.  593 ;  Loomis  v.  Loomis,  2  Vt.  201 ;  Adams  v.  Leavens,  20  Conn.  73 ; 
Van  Buskirk  v.  Ins.  Co.,  14  Conn.  145;  Foster  v.  Mix,  20  Conn.  895; 
Bishop  V.  Ilalcomb,  10  Conn.  444;  Woodbridge  v.  Perkins,  3  Day,  364; 
Judah  V.  Judd,  5  Day,  534 ;  Murdock  v.  Finney,  21  Mo.  138  ;  Cladfield  v. 
Cox,  1  Sneed,  330;  Fisher  v.  Knox,  13  Penn.  St.  622  ;  Judson  v.  Corcoran, 
17  How.  614.  But  see  Beavan  v.  Oxford,  6  De  G.,  M.  &  G.  507  ;  Keke- 
wich  V.  Manning,  1  De  G.,  M.  &  G.  176;  Clack  v.  Holland,  24  L.  J.  19; 
Barr's  Trusts,  4  K.  &  J.  219 ;  Scott  v.  Hastings,  id.  633 ;  Bridge  v.  Bea- 
don,  L.  R.  3  Eq.  664 ;  In  re  Brown's  Trusts,  L.  R.  5  Eq.  88 ;  Lloyd  v. 
Banks,  L.  R.  4  Eq.  222 ;  3  Ch.  488. 

(a)  See  Stephens  r.  Green,  [1895]     113;    1  Ames  on  Trusts  (2d   ed.), 
2  Ch.  148;   Re  Patrick,  39  W.  R.     320. 
614 


CHAP.  XV.]  POSSESSION.  [§  438. 

an  assignment  of  a  chose  in  action  is  complete  in  itself  when 
the  assignor  and  assignee  have  completed  the  transfer,  and 
that  notice  to  the  debtor  is  not  necessary  in  order  to  make 
tlio  assignment  valid  as  against  third  persons,  or  attaching 
creditors,  or  subsequent  assignees  M'itliuut  notice.^  13ut  it 
seems  to  be  agreed  in  all  the  cases,  that,  if  the  debtor  with- 
out notice  and  in  good  faith  pays  the  debt  to  the  assignor,  it 
will  be  a  good  i)ayment,  and  discharge  him  from  further 
liability;"'  but  if  he  should  pay  after  notice  he  would  still  be 
liable  to  the  assignee.^  Under  all  circumstances,  it  is  safer 
to  give  notice  to  the  debtor,  whether  the  courts  of  a  State 
hold  notice  necessary  or  not.  If  the  assignor  receive  the 
money  of  the  debtor  after  the  assignment,  he  will  hold  the 
money  in  trust  for  the  assignee.^  These  general  rules  con- 
cerning notice  do  not  apply  to  equities  in  real  estate.^  Trus- 
tees should  also  insist  upon  possession  of  all  the  notes,  bonds, 
policies,  and  other  obligations  for  the  payment  of  money 
being  delivered  to  them ;  for  if  negligent  in  this  respect, 
and  suits  and  costs  arise,  they  might  be  made  responsible 
personally.*^     So,  if  there  are  debts  or  securities  already  due 

1  Sharpless  v.  Welch,  4  Dall.  279  ;  Bholen  v.  Cleveland,  1  INIason,  174; 
Dix  V.  Cobb,  4  Mass.  508 ;  Wood  v.  Partridge,  11  I\Iass.  488  ;  Warren  v. 
Copelin,  4  ISIet.  594 ;  Littlefield  i'.  Smith,  17  Me.  327  ;  Corser  v.  Craig,  1 
Wash.  C.  C.  24;  United  States  v.  Vaughn,  3  P.inn.  394;  Muir  v.  Schenk, 
3  Hill,  228;  Talbot  r.  Cook,  7  Mon.  438;  IMaybin  v.  Kirby,  4  Rich.  Eq. 
105;  Stevens  v.  Stevens,  1  Ashm.  590;  Beckwith  v.  Union  Bank,  5  Seld. 
211 ;  Conway  v.  Cutting,  50  N.  H.  408  ;  Garland  v.  Harrington,  51  N.  H. 
409. 

2  Reed  v.  l^Iarble,  10  Paige,  509 ;  Mangles  v.  Dixon,  18  Eng.  L.  &  Eq. 
82;  1  Mac.  &  G.  446;  3  II.  L.  Cas.  739,  and  cases  before  cited ;  Stocks  r. 
Dobson,  4  De  G.,  M.  &  G.  11. 

8  Brashear  v.  West,  7  Pet.  G08,  and  cases  before  cited ;  Judson  v.  Cor- 
coran, 17  How.  614. 

4  Ellis  V.  Amason,  2  Dev.  Eq.  273  ;  Fortesque  v.  Barnett,  3  Myl.  & 
K.  36. 

6  Wilmot  V.  Pike,  5  Hare,  14;  Etty  v.  Bridges,  2  Y,  &  Col.  486;  Ex 
parte  Boulton,  1  De  G.  &  J.  163;  Webster  v.  Webster,  31  Beav.  393; 
Stevens  v.  Venables,  30  id.  625  ;  Barr's  Trusts,  4  K.  &  J.  219;  Van  Ren- 
salaer  v.  Stafford,  Ilopk.  Ch.  569;  9  Cow.  316;  Poillon  v.  :Martin,  1 
Sandf.  Ch.  569. 

0  Fortesciue  ;•.   Barnett,  3  I\Iyl.  &  K.  36;  Meux  v.  Bell,  1  Hare,  82; 

615 


§  439.]  CUSTODY.  [CIIAP.   XV. 

and  payable  to  the  trust  estate,  the  trustees  must  proceed  to 
collect  them.  If  any  loss  happens  to  the  estate  from  any 
delay,  they  would  be  responsible,^  and  they  may  accept  pay- 
ment even  before  the  debts  are  due.^  Where  it  is  important 
for  the  trustees  to  give  notice  of  an  assignment  to  them,  notice 
to  one  of  several  obligors  is  notice  to  all :  so  notice  to  one  of 
several  of  a  society  of  underwriters  is  sufficient;  and  if  the 
obligors  compose  a  corporation,  there  must  be  notice  to  the 
directors  or  trustees  of  the  corporation.^  So,  if  notice  to 
trustees  is  necessary  in  any  case,  notice  to  one  is  sufficient.'* 

§  439.  There  is  no  fixed  time  within  which  executors  are 
to  get  in  the  choses  in  action  of  the  testator.  They  must  use 
due  diligence ;  and  what  is  due  diligence  depends  upon  the 
existing  facts  in  every  case,  and  a  large  discretion  must 
necessarily  be  vested  in  the  executor.^  If  there  is  property 
that  cannot  be  kept  without  great  expense,  it  should  be  sold 
forthwith.  If  the  testator's  establishment  is  expensive,  it 
should  be  broken  up  withiu  a  reasonable  time  ;  and,  under 
special  circumstances,  two  months  were  held  to  be  reason- 
able.^ If  there  are  shares  or  stocks  in  corporations,  the  ex- 
Evans  V.  Bickuell,  6  Ves.  174;  Knye  v.  Moore,  1  S.  &  S.  65 ;  Lloyd  v. 
Banks,  L.  R.  4  Eq.  222;  3  Ch.  488. 

1  Caffrey  v.  Darbey,  6  Ves.  488;  McGacheu  v.  Dew,  15  Beav.  84;  Tebbs 
V.  Carpenter,  1  Madd.  298 ;  Waring  v.  Waring,  3  Ir.  Eq.  335  ;  Platel  v. 
Craddock,  C.  P.  Coop.  481;  Wiles  v.  Gresham,  2  Drew.  258;  Grove?;. 
Price,  26  Beav.  103 ;  Rowley  v.  Adams,  2  H.  L.  Cas.  725 ;  Macken  v. 
Hogan,  14  Ir.  Eq.  220;  Mucklow  v.  Fuller,  Jac.  198;  Powell  v.  Evans, 
5  Ves  839 ;  Lowson  v.  Copeland,  2  Bro.  Ch.  156 ;  Caney  v.  Bond,  6  Beav. 
486 ;  Cross  v.  Petree,  10  B.  Mon.  413  ;  Wolfe  v.  Washburn,  6  Cow.  261 ; 
Waring  v.  Darnall,  10  G.  &  J.  127 ;  Hester  v.  Wilkinson,  6  Humph.  215 ; 
Garner  v.  Moore,  3  Drew.  277;  Neff's  App.,  57  Penn.  St.  91. 

2  Mills  V.  Osborne,  7  Sim.  30. 

8  Timson  v.  Ramsbottom,  2  Keen,  35 ;  Meux  v.  Bell,  1  Hare,  88 ;  Re 
Styan,  1  Phill.  155  ;  Smith  v.  Smith,  2  Cr.  &  Mee.  31 ;  Duncan  v.  Cham- 
berlayne,  11  Sim.  123. 

4  Greenhill  v.  Willis,  4  De  G.,  F.  &  J.  147. 

s  Waring  v.  Darnall,  10  G.  &  J.  127 ;  Hughes  v.  Empson,  22  Beav. 
188. 

«  Field  V.  Pecket,  29  Beav.  576. 
616 


CHAP.   XV.]  CUSTODY.  [§4^0. 

ecutors  must  exercise  a  sound  discretion  to  sell  in  the  most 
advantageous  manner,  and  at  the  most  advantageous  time. 
In  the  case  of  some  Crystal  Palace  shares  owned  by  a  testa- 
tor, a  sale  within  a  year  was  held  to  be  the  exercise  of  a 
reasonalde  discretion,  although  it  was  claimed  that  they 
ought  to  have  been  sold  within  two  months.^  So,  where  a 
large  part  of  an  estate  consisted  of  Mexican  bonds,  which 
the  testator  directed  to  be  converted  "with  all  convenient 
speed,"  it  was  held  that  these  words  added  nothing  to  the 
implied  duty  of  every  executor  to  convert  such  property  with 
all  reasonable  speed ;  that  a  conversion  in  the  course  of  the 
second  year  was  proper  and  reasonable ;  that  if  executors 
were  bound  to  sell  at  once  without  reference  to  the  circum- 
stances, there  would  often  be  a  great  sacrifice  of  property,  and 
therefore  that  executors  were  bound  to  exercise  a  reasonable 
discretion^  according  to  the  circumstances  of  each  case.^  But 
generally  stock  should  be  sold  within  the  year  allowed  for 
the  settling  of  a  testator's  estate,  and  a  delay  beyond  this 
time  may  render  the  executors  or  trustees  liable  for  the 
loss,  although  they  act  in  good  faith,  and  although  some  of 
the  trustees  became  of  age  only  a  short  time  before  the 
sale.  2  If,  however,  it  is  clear  that  the  trustees  have  a  dis- 
cretion to  sell  or  not  according  to  their  judgment,  the 
case  will  be  governed  by  the  intention  and  not  by  the 
general  rule.^ 

§  440.  Personal  securities  change  from  day  to  day ;  and 
as  the  death  of  the  testator  puts  an  end  to  his  discretion  in 
regard  to  them,  unless  he  has  exercised  it  in  his  will,  the 
executor  or  trustee  will  become  personally  liable,  if  he  does 

1  Hughes  V.  Empson,  22  Beav.  138;  Bate  v.  Hooper,  5  De  G.,  M.  &  G. 
338;  Wilkinson  r.  Duncan,  2G  L.  J.  (n.  s.)  Ch.  405. 

2  Buxton  V.  Buxton,  1  M.  &  C.  80  ;  Prendergast  r.  Lushington,  5  Hare, 
171;  Hester  v.  Wilkinson,  6  Humph.  215;  Waring  v.  Darnall,  10  G.  &  J. 
127. 

8  Sculthorpe  v.  TifEer,  L.  R.  13  Eq.  238 ;  Grayburn  i'.  Clarkson,  L.  R. 
3  Ch.  G05. 

*  Mackie  v.  Mackie,  5  Hare,  70 ;  Wrey  v.  Smith,  11  Sim.  202 ;  Spar- 
ling V.  Parker,  9  Beav.  524. 

617 


§  440.]  CUSTODY.  [chap.  XV. 

not  get  in  the  money  within  a  reasonable  time.^  He  must 
not  allow  the  assets  to  remain  out  on  personal  security,2(a) 
though  it  was  a  loan  or  investment  by  the  testator  himself.^ 
It  is  not  enough  for  the  executor  to  apply  for  payment 
through  an  attorney :  he  must  follow  the  collection  actively 
by  legal  proceedings/  unless  he  can  show  that  such  proceed- 
ings would  have  been  futile  and  vain.^  An  executor  must 
take  the  same  steps  when  his  coexecutor  is  a  debtor  to  the 
estate,  even  if  the  testator  has  been  in  the  habit  of  deposit- 
ing or  lending  money  to  the  coexecutor  as  to  a  banker.^ 
Executors  are  not  justified  in  dealing  with  a  testator's  money 
as  he  dealt  with  it  himself,  nor  may  they  trust  all  the  per- 
sons that  he  trusted.  Nor  will  a  direction  in  the  will  "to 
call  in  securities  not  approved  by  them  "  excuse  executors 
from  not  calling  in  personal  securities ;  for  such  direction 
refers  to  the  different  kinds  of  securities  sanctioned  by  law 

1  Bailey  v.  Young,  4  Y.  &  Col.  Ch.  226;  Will's  App.,  22  Penn.  St. 
330;  Mucklow  v.  Fuller,  Jac.  198;  Tebbs  v.  Carpenter,  1  Madd.  297. 

2  Lowson  V.  Copeland,  2  Bro.  Ch.  156;  Caney  ?».  Bond,  6  Beav.  486; 
Att.  Gen.  v.  Higham,  2  Y.  &  Col.  Ch.  634;  Hemphill's  App.,  18  Penn. 
St.  303. 

3  Powell  V.  Evans,  5  Ves.  839 ;  Bullock  v.  Wheatley,  1  Col.  C.  C.  130 ; 
Tebbs  V.  Carpenter,  1  Madd.  298;  Clough  v.  Bond,  3  Myl.  &  Cr.  496; 
Hemphill's  App.,  18  Penn.  St.  303;  Fray's  App.,  34  id.  100;  Barton's 
App.,  1  Pars.  Eq.  24,  is  overruled;  Kimball  v.  Reading,  11  Foster,  352. 
In  England,  bank  stock  must  be  converted.  Mills  v.  Mills,  7  Sim.  509; 
Howe  V.  Dartmouth,  7  Ves.  150;  Price  v.  Anderson,  15  Sim.  473. 

*  Lowson  V.  Copeland,  2  Bro.  Ch.  156;  Horton  v.  Brocklehurst,  29 
Beav.  511 ;  Paddon  v.  Richardson,  7  De  G.,  M.  &  G.  563;  Wolfe  v.  Wash- 
burn, 6  Cow.  261. 

6  Clack  V.  Holland,  19  Beav.  262 ;  Hobday  v.  Peters,  28  id.  603  ;  Alex- 
ander V.  Alexander,  12  Ir.  Eq.  1;  ]\Iaitland  v.  Bateman,  16  Sim.  233,  and 
note;  Walker  v.  Symonds,  3  Swanst.  71;  East  r.  East,  5  Hare,  343; 
Ratcliff  V.  Wynch,  17  Beav.  217;  Ball  v.  Ball,  11  Ir.  Eq.  370  ;  Styles  v. 
Guy,  16  Sim.  232;  Billing  v.  Brogden,  38  Ch.  D.  546. 

«  Styles  V.  Guy,  1  Mac.  &  G.  428  ;  1  Hall  &  Tw.  523  ;  Egbert  v.  Butter, 
21  Beav.  560;  Candler  v.  Tillett,  22  Beav.  257  ;  Mucklow  v.  Fuller,  Jac. 
198. 

(a)  Unless   so  directed    by  the    Harris,  84  N.  Y.  89,  reversing  s.  c. 
creator  of  the   trust.       Denike   r.     23  Hun,  213. 
618 


CHAP.    XV.]  CUSTODY.  [§  440. 

and  the  court,  and  not  to  all  investments  outside  the  sanc- 
tions of  the  law.  ^  If  the  executors  are  to  get  in  the  money 
"whenever  they  think  proper  and  expedient,"  they  will  be 
liable  for  the  fund  if  they  allow  it  to  remain  uncollected  out 
of  kindness  or  rcj^ard  for  the  tenant  for  life,  and  not  ujjon 
an  impartial  judgment  for  the  best  interest  of  all  the  parties. ^ 
If  the  outstanding  debt  is  secured  by  a  real  mortgage,  it 
ought  not  to  be  called  in,  if  it  is  safe,  until  it  is  wanted  in 
the  course  of  the  administration. ^  But  pains  should  be 
taken  to  ascertain  whether  the  security  is  safe.'*  If  the  mort- 
gage security  is  not  adequate,  the  executor  or  trustee  must 
insist  upon  payment,  even  where  the  cestui  que  trust  is  to 
consent  to  every  change  of  investment,  and  he  refuses  to  con- 
sent; for  nothing  will  justify  conduct  that  endangers  the 
fund.^  But  if  the  fund  is  safe  on  a  security  sanctioned  by 
the  court  and  selected  by  the  testator,  it  might  be  a  breach 
of  trust  to  call  it  in,  and  allow  it  to  remain  unproductive, 
or  to  invest  it  anew."  (a)  But  if  trustees  are  ordered  by  the 
court  to  call  in  securities,  and  they  neglect  to  do  so,  they 
will  be  lialjle  for  any  loss  that  occurs.''  So,  if  trustees  com- 
promise a  debt  due  from  a  bankrupt  estate,  they  must  show 
that  the  bankrupt  would  have  obtained  his  discharge,  and 
that  it  was  impossible  to  get  the  whole  debt,  or  they  will  be 
liable  for  the  loss.^  If  the  trustee  himself  owes  the  estate, 
he  must  treat  his  indebtedness  as  assets  collected,  and  if  he 
becomes  bankrupt,  he  must  prove  the  debt  against  himself, 
or  he  will  be  liable,  even  if  he  gets  his  discharge.^     But  in 

1  Styles  V.  Guy,  1  Mac.  &  G.  428 ;  Scully  v.  Delany,  2  Ir.  Eq.  165. 

2  Luther  v.  Bianconi,  10  Ir.  Ch.  104. 

«  Orr  V.  Newton,  2  Cox,  274  ;  Howe  v.  Dartmouth,  7  Ves.  150 ;  Robin- 
son V.  Robinson,  1  De  G.,  M.  &  G.  252. 
*  Ames  r.  Parkinson,  7  Beav.  384. 
^  Harrison  v.  Thexton,  4  Jur.  (n.  s.)  550. 
«  Orr  I'.  Newton,  2  Cox,  276. 
'  Davenport  v.  Stafford,  14  Beav.  338. 

8  Wiles  V.  Gresham,  2  Dr.  258;  5  De  G.,  M.  &  G.  770.  Lord  Justice 
Turner  expressed  a  doubt,  whether  the  trustees  should  have  been  charged, 
without  further  inquiry.     Bacot  r.  Hayward,  5  S.  C.  441. 

9  Orrett  v.  Corser,  21  Beav.  52;  Prindle  v.  Holcombe,  45  Conn.  Ill; 

(a)  See  Re  Hurst,  65  L.  T.  C65. 

619 


s 


441.]  CUSTODY.  [CIIAP.   XV. 


the  United  States  bankrupts  are  not  discharged  from  any 
liabilities  which  they  are  under  in  a  fiduciary  capacity. 

§  441.  It  was  observed  in  Harden  v.  Parsons,^  that  no  man 
can  require,  or  with  reason  expect,  that  a  trustee  should 
manage  another's  property  with  the  same  care  and  discre- 
tion as  his  own.  But  this  is  neither  sound  morality  nor 
good  law.  A  trustee  must  use  the  same  care  for  the  safety 
of  the  trust  fund,  and  for  the  interests  of  the  cestui  que  trusty 
that  he  uses  for  his  own  property  and  interests. ^  And  even 
this  will  not  be  sufficient  if  he  is  careless  in  his  own  con- 
cerns ;  for  a  trustee  must  in  all  events  use  such  care  as  a  man 
of  ordinary/  prudence  uses  in  his  own  business  of  a  similar 
nature.^  Thus,  where  a  trustee  had  X200  of  his  own  money, 
and  £40  of  trust-money,  in  his  house,  and  he  was  robbed  by 
his  servant,  he  was  not  held  responsible.^  And  where  a 
trustee  deposited  articles  with  his  solicitor,  to  be  passed 
over  to  a  party  entitled  to  them,  and  the  articles  were  stolen, 
the  trustee  was  not  held  responsible.^  But  if  a  trustee  em- 
ploys an  agent,  and  the  agent  steals  or  appropriates  the  prop- 
erty intrusted  to  him,  the  trustee  will  be  held  responsible ; 
that  is,  the  trustee  is  not  responsible  for  the  crimes  of  stran- 

Ipswich  Manuf.  Co.  v.  Story,  5  Met.  310;  Chenery  v.  Davis,  16  Gray,  89; 
Ilazelton  v.  Valentine,  113  Mass.  472;  Pettee  v.  Peppard,  120  Mass.  523. 
The  acceptance  of  the  trust  requires  him  to  treat  an  indebtedness  for 
which  he  was  previously  responsible  as  assets  collected.  Stevens  r.  Gay- 
lord,  11  Mass.  269  ;  Ips.  Manuf.  Co.  v.  Story,  18  Pal.  236  ;  1  Allen,  531, 
10  Cush.  176  ;  120  Mass.  523. 

1  1  Eden,  148. 

2  Morley  v.  Morley,  2  Ch.  Cas.  2  ;  Jones  v.  Lewis,  2  Ves.  241;  Massey 
V.  Banner,  1  J.  &  W.  247 ;  Att.  Gen.  v.  Dixie,  13  Ves.  534 ;  Ex  parte 
Belchier,  Amb.  220;  Ex  parte  Griffin,  2  G.  &  J.  114  ;  Taylor  v.  Benham, 
5  How.  233;  King  v.  Talbott,  50  Barb.  4.53;  40  N.  Y.  86;  Miller  r.  Proc- 
tor, 20  Ohio  St.  444 ;  Neff's  App.,  57  Peun.  St.  91;  King  v.  King,  37  Ga. 
205;  Campbell  v.  Campbell,  38  Ga.  304;  Roosevelt  w.  Roosevelt,  6  Abb. 
(N.  Y.)  N.  Cas.  447 ;  Gould  v.  Chappell,  42  Md.  466  ;  Carpenter  v.  Car- 
penter, 12  R.  I.  544 ;  Davis  v.  Harmon,  21  Grat.  194. 

8  Woodruff  V.  Snedecor,  68  Ala.  442. 
*  Morley  v.  Morley,  2  Ch.  Cas.  2. 

6  Jones  V.  Lewis,  2  Ves.  240 ;  Foster  v.  Davis,  46  Mo.  268. 
620 


CHAP.   XV.]  CUSTODY.  [§  443. 

gers,  but  he  is  responsible  for  the  criminal  acts  of  agents 
employed  by  himself  about  the  trust  fun(l,^(«)  and  for  any 
loss  that  may  fall  upon  the  estate  by  the  forgery  of  a  signa- 
ture upon  which  he  pays  money.  ^ 

§  442.  Several  trustees,  residing  in  different  places,  can- 
not all  have  the  custody  of  the  same  articles ;  therefore  it  is 
said  that  articles  of  plate,  which  pass  by  delivery,  and  stocks 
and  bonds,  })ayablc  to  the  bearer,  with  coupons  to  be  cut 
off  for  the  interest,  should  be  deposited  at  a  responsible 
banker's.^ 

§  443.  A  trustee  may  deposit  money  temporarily  in  some 
responsible  bank  or  banking-house;^  and  if  he  acted  in  good 
faith  and  with  discretion,  and  deposited  the  money  to  a  trust 
account,  he  will  not  be  liable  for  its  loss,  as  where  the  bank 
failed  in  consequence  of  war;^  but  he  will  be  liable  for  the 
money  in  case  of  a  failure  of  the  bank,  or  for  its  depreciation, 
if  he  deposits  it  to  his  own  credit,  and  not  to  the  separate 
account  of  the  trust  estate,*^  even  though  he  had  no   other 

1  Bostock  V.  Floyer,  L.  R.  1  Eq.  28;  Hapgood  ».  Perkins,  L.  R.  11 
Eq.  74. 

2  Eaves  v.  Hickson,  30  Beav.  136. 

8  Mendes  v.  Guedalla,  2  John  &  H.  259. 

*  Rowth  V.  Howell,  3  Ves.  Jr.  505;  Jones  v.  Lewis,  2  Ves.  241;  Adams 
V.  Claxton,  6  Ves.  226;  Ex  parte  Belchier,  Arab.  219;  Att.  Gen.  v.  Ran- 
dall, 21  Vin.  Ab.  534;  Massey  v.  Banner,  1  J.  &  W.  248;  Ilorsley  v. 
Chaloner,  2  Ves.  85 ;  France  v.  Woods,  Taml.  172  ;  Dorchester  v.  Effing- 
ham, id.  279;  Freme  v.  Woods,  id.  172;  Wilks  v.  Groome,  3  Dr.  584; 
Johnston  v.  Newton,  11  Hare,  160 ;  Swinfen  v.  Swinfen,  29  Beav.  211. 

8  Douglas  V.  Stephenson's  Ex'r,  75  Va.  749. 

6  Wren  v.  Kivton,  11  Ves.  377;  Fletcher  v.  Walker,  3  Madd.  73;  I\Iac- 
donnell  v.  Harding,  7  Sim.  178;  Mathews  v.  Brise,  6  Beav.  239;  IMassey 
r.  Banner,  1  J.  &  W.  241  ;  see  remarks  on  this  case  in  Pennell  v.  Deffell, 
4  De  G.,  M.  &  G.  386,  392 ;  School  Dis.  Greenfield  v.  First  National 
Bank,  102  Mass.  174 ;  Mason  v.  Whitehorn,  2  Cold.  242. 

(a)  In  Jobson  v.  Palmer,  [1893]  employment  of  a  servant  was  neces- 

1  Ch.  71,  it  was  held  that  a  trustee,  sary,  and  the  trustee  has  used  due 

even  when  remunerated  for  his  ser-  care  in  selecting  him.      See   supra, 

vices,  is  not  liable  for  his  servant's  §  246,  n. 
theft   of  trust  property,    when   the 

621 


§  444.]  CUSTODY.  [chap.    XV. 

funds  in  bank,  and  told  the  officers  at  the  time  of  deposit 
that  the  funds  were  held  by  him  in  trust. ^  (a)  So  if  he  allows 
another  person  to  draw  upon  the  fund  and  misapply  the 
money  ;^  so  if  he  deposits  the  money  in  such  manner  that  it 
is  not  under  his  own  exclusive  control,  as  where  money  is 
deposited  in  bank  so  that  it  cannot  be  drawn  without  the 
concurrence  of  other  persons,  the  trustee  will  be  liable  for 
the  failure  of  the  bank,  on  the  principle  that  it  is  the  duty  of 
the  trustee  to  withdraw  the  money  from  the  bank  upon  the 
slightest  indication  of  danger  or  loss,  and  he  cannot  per- 
form this  duty  promptly  if  he  is  clogged  by  the  necessity  of 
procuring  the  concurrent  action  of  other  persons.^  So  he 
will  be  liable  if  he  keeps  money  in  bank  an  unreasonable 
length  of  time,  or  where  it  is  his  duty  to  invest  the  fund  in 
safe  securities,*  or  to  pay  it  over  to  newly  appointed  trustees,^ 
or  into  court  ;^  or  if,  having  no  occasion  to  keep  a  balance  on 
hand  for  the  purposes  of  the  trust,  he  lends  the  money  to  the 
bank  on  interest  upon  personal  security,  that  being  a  security 
not  sanctioned  by  the  court. '^ 

§  444.  Trustees  may  leave  money  in  the  custody  of  third 
persons  when  it  is  necessary  in  the  course  of  business,  as 
where  money  is  left  in  the  hands  of  an  auctioneer  as  agent 
of  both  parties  on  a  sale  or  purchase;^  and  during  the  nego- 

1  William's  Adm'r  v.  Williams,  55  Wis.  300. 

2  Ingle  V.  Partridge,  32  Beav.  661 ;  34  id.  411. 

8  Salway  v.  Salway,  alias  White  v.  Baugh,  2  R.  &  M.  215 ;  9  Bligh,  181 ; 
3  CI.  &  Fin.  44;  overruling  same  case,  4  Russ.  60. 

4  Moyle  V.  Moyle,  2  R.  &  M.  710;  Johnston  v.  Newton,  11  Hare,  169. 

6  Lunham  v.  Blundell,  4  Jur.  (x.  8.)  3. 

8  Wilkinson  v.  Bewick,  4  Jur.  (n.  s.)  1010. 

'  Darke  v.  Martyn,  1  Beav.  525. 

8  Edmonds  v.  Peake,  7  Beav.  239, 

(a)  See  Arguello's  Estate  (Cal.),  id.  61;   Munnerlyn  ?'.   Augusta  S. 

31Pac.  937;  Booth  v.  Wilkinson,  78  Bank,  88  Ga.  333;  Key  v.  Hughes, 

Wis.  652;  O'Connor  v.  Decker,  95  32  W.  Va.  184;  Moore  v.  Eure,  101 

Wis.  202;  Baer's  Appeal,  127  Penn.  N.  C.  11 ;  Atterberry  v.  McDuffee, 

St.  360;  Milmo's  Succession,  47  La.  31  Mo.  App.  603;  1  Ames  on  Trusts 

Ann.  126  ;  Barrett's  Succession,  43  (2d  ed.,)  481-483,  notes. 
622 


CHAP.   XV.]  CUSTODY.  [§  444. 

tiation  of  an  investment,  the  trustees  may  buy  exchequer 
bills  ;^  but  if  they  leave  the  exchequer  bills  undistinguished 
in  the  hands  of  a  banker  or  broker,  they  will  be  liable  for  the 
loss  of  the  money. 2  But  if  trustees  deposit  money  in  bank 
to  their  own  credit  ;3  or  if  they  leave  it  for  an  unreasonable 
time,  as  a  year  after  the  testator's  death  and  after  all  debts 
and  legacies  are  paid;*  or  if  they  place  their  papers  and  re- 
ceipts in  the  hands  of  their  solicitor,  so  that  he  can  receive 
their  money  and  misapply  it;^  or  if  the  money  is  so  paid 
into  bank  that  it  may  be  drawn  out  upon  the  check  of  one 
trustee  and  misapplied;^  or  if  they  neglect  to  sell  property 
when  it  ought  to  have  been  sold,"  or  suifer  money  to  remain 
upon  personal  security,^  or  upon  an  unauthorized  security;^ 
or  if  the  money  is  left  improperly  or  unadvisedly  in  the 
hands  of  a  coexecutor  or  cotrustee,  so  that  he  has  an  oppor- 
tunity to  misapply  it,  —  all  the  trustees  will  be  responsible  for 
any  loss  that  may  occur  to  the  trust  fund.^*^  So  trustees  are 
liable  for  the  attorneys  and  solicitors  whom  they  employ;  as 
where  they  employ  a  solicitor  to  examine  the  title  to  a  pro- 
posed mortgage,  and  they  are  misled  by  him  in  such  manner 
that  a  loss  occurs  to  the  estate,  they  are  liable  to  make  it 
good." 

1  Mathews  v.  Brise,  6  Beav.  239. 

2  Ibid. 

8  Massey  V.  Banner,  1  J.  &  W.  241;  Wren  v.  Kirton,  11  Ves.  377; 
Mason  v.  Whitehorn,  2  Cold.  242. 

4  Ibid. 

6  Ghost  V.  Waller,  9  Beav.  497 ;  Rowland  v.  Witherden,  3  Mac.  &  G. 
568. 

6  Clourrh  v.  Bond,  3  Myl.  &  Cr.  490 ;  Clough  v.  Dixon,  8  Sim.  594. 

^  Phillips  V.  Phillips,  Freem.  Ch.  11. 

8  Powell  V.  Evans,  5  Ves.  839 ;  Tebbs  v.  Carpenter,  1  Madd.  290. 

^  Hancom  v.  Allen,  2  Dick.  498  and  n. ;  Howe?'.  Dartmouth,  7  Ves. 
137. 

10  Langford  r.  Gascoyne,  11  Ves.  333;  Shipbrook  v.  Hinchinbrook,  id. 
252;  IG  Ves.  478;  Underwood  v.  Stevens,  2  Mer.  712;  Hardy  v.  Metro- 
politan Land  Co.,  L.  R.  7  Ch.  429. 

"  Hapgood  V.  Perkins,  L.  R.  11  Eq.  74;  Bostock  v.  Floyer,  L.  R.  1 
Eq.  26. 

623 


§  447.]  CUSTODY.  [chap.  XV. 


§  445.  In  one  case  it  was  said,  that  an  executor  would 
not  be  liable  if  he  had  placed  money  in  bank  under  the 
control  of  a  coexecutor.  The  money  was  entered  on  joint 
account,  but  the  individual  checks  of  the  coexecutors  could 
draw  it  out.  This  was  held  to  be  the  ordinary  and  reason- 
able course  of  business.^  If,  however,  there  is  any  fraud, 
collusion,  or  wilful  default,  or  gross  neglect,  or  if  the  exec- 
utor has  any  reason  to  interfere,  and  does  not  put  a  stop  to 
the  mismanagement  of  his  coexecutor,  he  will  be  held  liable.^ 
The  case  of  Kilbee  v.  Sneyd,  however,  is  so  doubtful  on  this 
point,  and  contrary  to  authority,  that  it  would  be  unsafe  to 
act  upon  it.  3 

§  446.  Trustees  and  executors  have  a  reasonable  time  to 
wind  up  a  testator's  estate,  and  make  investments ;  and  they 
may,  without  responsibility,  keep  the  money  in  a  reliable 
bank  for  one  year  after  the  death  of  the  testator ;  *  but  if  they 
draw  the  money  out  of  bank,  and  make  any  irregular  invest- 
ment, or  lend  it  to  another  bank  on  interest,  they  will  be  re- 
sponsible for  the  loss  of  the  money,  even  if  the  will  directs 
that  the  trustees  shall  not  be  responsible  for  losses  by  a 
banker;  the  construction  of  such  direction  being  that  the 
trustees  shall  not  be  liable  for  loss  of  money  deposited  with  a 
banker  in  the  ordinary  manner.^ 

§  447.  The  trustee  must  not  mingle  the  trust  fund  with 
his  own.  If  he  does,  the  cestui  que  trust  may  follow  the  trust 
property,  and  claim  every  part  of  the  blended  property  which 
the  trustee  cannot  identify  as  his  own.^ 

1  Kilbee  v.  Sneyd,  2  Moll.  186. 

2  Ibid.  203,  21.3. 

3  Clough  V.  Dickson,  8  Sim.  594;  3  Myl.  &  Cr.  490;  Gibbons  v.  Taylor, 
22  Beav.  344;  Ingle  v.  Partridge,  32  Beav.  661;  34  Beav.  411. 

*  Johnston  v.  Newton,  11  Hare,  160;  Swinfen  v.  Swinfen,  29  Beav. 
211 ;  Wilks  v.  Groome,  3  Dr.  584. 

5  Rehden  v.  Wesley,  29  Beav.  213. 

«  Lupton  V.  White,  15  Yes.  432,  440;  Chedworth  v.  Edwards,  8  Ves. 
46;  White  r.  Lincoln,  id.  363;  Fellowes  v.  Mitchell,  1  P.  Wms.  83;  Gray 
V.  Haig,  20  Beav.  219 ;  Leeds  v.  Amherst,  id.  239 ;  Mason  v.  Morley,  34 
624 


CHAP.    XV.] 


CONVERSION. 


[§  448. 


§  448.  There  may  be  express  trusts  for  conversion;  that 
is,  to  sell  the  trust  fund,  as  it  exists  at  the  time  of  the  tes- 
tator's decease,  and  convert  the  same  into  some  other  kind 
of  property  or  investment  ;((^/)  and  there  may  be  an  express 
trust  to  allow  the  cestuis  que  tru.st  the  use  and  enjoyment  of 
the  specific  property  devised.  Both  of  these  forms  of  trust 
must  Ije  strictly  executed,  and  generally  no  question  arises 
upon  them.  But  a  question  sometimes  arises  from  the  situ- 
ation and  character  of  the  property,  and  the  relations  of  the 
cestuis  que  trust  to  it,  whether  the  trustee  is  to  convert  the 
property  into  another  form,  or  allow  the  cestuis  que  trust  to 

Beav.  471,  475;  Cook  v.  Addison,  L.  R.  7  Eq.  470;  Morrison  i-.  Kinstra, 
55  Miss.  71. 


(a)  Conversion  may  be  immedi- 
ate ;  or  it  may  take  place  upon  the 
death  of  the  creator  of  the  trust,  as 
wlien  he  makes  a  deed  of  property 
subject  to  a  Ufe-estate  for  himself. 
See  Att.  Gen.  v.  Dodd,  [1894]  2  Q. 
B.  150;  Paisley  v.  Holzshu,  83  Md. 
325 ;  Crane  v.  Bolles,  49  N.  J.  Eq. 
373;  Thomraan's  Estate,  Kil  Penn. 
St.  444 ;  Smith  r.  Loewenstein,  50 
Ohio  St.  346;  In  re  Holder  (R.  I.), 
41  Atl.  57G;  Benbow  v.  Moore,  114 
N.  C.  263  ;  Dodge  v.  Williams,  46 
Wis.  70;  Penfield  v.  Tower,  1  N. 
Dak.  216.  In  Pennsylvania,  a  tes- 
tator's express  direction  in  his  will 
that  his  executor  sell  all  his  real 
estate  at  tlie  end  of  twenty  years 
works  a  conversion  thereof  as  of  the 
time  of  his  death.  Ilandley  v.  Pal- 
mer, 91  F.  R.  948;  Williamson's 
Estate,   153  Penn.   St.   508. 

"  The  doctrine  of  equitable  con- 
version is  simply  an  application 
of  the  fundamental  principle  that 
equity  regards  that  as  done  which 
ought  to  be  done.  .  .  .  Conversion 
is  effected  by  a  sale.  Equitable 
conversion  is  effected  by  a  power 
VOL.  I.  —  40 


to  sell  and  a  duty  to  sell.  It  is  not 
enough  to  manifest  an  intent  that 
lands  shall  pass  as  money,  unless 
there  is  also,  either  in  terms  or  by 
implication,  a  grant  of  the  moans  of 
turning  it  into  money."  Per  Bald- 
win, J.,  in  Clarke's  Appeal,  70  Conn. 
195,  215,  217. 

The  conversion  always  relates 
back  to  the  earliest  possible  mo- 
ment, as  to  the  date  of  the  contract 
giving  an  option,  and  it  applies  to 
an  intestacy,  even  when  the  option 
to  purchase  is  exercisable  only  after 
the  grantor's  death.  Lawes  v.  Ben- 
nett, 1  Cox,  167;  In  re  Isaacs,  [1S94] 
3  Ch.  506;  Williams  v.  Haddock, 
145  N.  Y.  144.  But  no  conversion 
is  effected  by  an  instrument  which 
is  invalid,  or  which  fails  of  its  pur- 
pose. Moore  v.  Bobbins,  53  N.  J. 
Eq.  137.  When,  however,  there  has 
been  a  partial  failure  of  the  trusts 
created  by  will,  and  a  partial  con- 
version has  been  made,  the  heir 
may  take  the  property,  by  way  of 
resulting  trust,  in  the  state  into 
which  it  was  converted  by  the  will. 
In  re  Richerson,  [1892]  1  Ch.  379. 
625 


§  449.] 


CONVEKSION. 


[chap.    XV. 


enjoy  it  iii  specie  :  tliat  is,  the  court  is  left  to  infer  or  imply, 
from  the  construction  of  the  instrument,  the  character  of  the 
property  and  the  relations  of  the  cestuis  que  trust,  whether  it 
was  the  intention  of  the  testator  that  the  property  should  be 
converted,  or  whether  the  beneficiaries  should  take  the  use  of 
it  specifically,  according  to  the  terms  in  which  it  is  given. 
All  such  cases  must  be  determined  by  their  own  facts  and 
the  construction  of  the  instrument  under  which  the  trust 
exists.  1  (a) 

§  4-19.    A  court  of  equity  has  authority  to  decree  the  con- 
version of  a  trust  fund  from  personal  to  real  estate,  {h)  or, 
1  Hidden  v.  Hidden,  103  Mass.  59. 

(a)  There  is  no  conversion  merely  523;  Roy  v.  Monroe,  47  N.  J.  Eq. 
of  a  request  or  direction  therefor,  356 ;  Gould  v.  Taylor  Orphan  Asy- 
or  of  a  discretionary  power  to  sell,  lum,  46  Wis.  106 ;  Ramsey  v.  Han- 
See  Goodier  v.  Edmunds,  [1893]  3  Ion,  33  F.  R.  425 ;  Merritt  v.  Mer- 
Ch.  455;  In  re  Pyle,  [1895]  1  Ch.  ritt,  53  N.  Y.  S.  127. 
724;    Basset  v.  St.  Levan,  71  L.  T.  The  courts  of  a  testator's  domicil 

718;  Re  Bingham,  127  N.  Y.  296;  are  to  determine,  as  to  land  within 
Chapin,  petitioner,  148  Mass.  588;  their  jurisdiction,  the  question 
Carney  ?'.    Kain,  40  W.    Va.   758;    whether    an    equitable    conversion 


R.  I.  Hospital  Trust  Co.  v.  Harris 
(R.  I.),  39  Atl.  750  ;  Machemer's 
Estate,  140  Penn.  St.  544  ;  Darling- 
ton V.  Darlington,  160  id.  65;    In- 


was  uitended  by  his  will.     Clarke's 
Appeal,  70  Conn.  195. 

(h)  When  personal  estate  is  di- 
rected by  the  will  to  be  applied  in 


gersoll's  Estate,  167  id.  536 ;    SoUi-    purchasing   real   estate,    it    is    im- 


day's  Estate,  175  id.  114;  Ness  i'. 
Davidson,  49  Minn.  469;  Cobb's 
Estate,  36  N.  Y.  S,  448;  Allen  v. 
Stevens,  49  id.  431 ;  In  re  Hosford, 
50  id.  550  ;  Wheless  v.  Wheless,  92 
Tenn.  293 ;  Ford  v.  Ford,  70  Wis. 
19;  McHugh  v.  McCole,  97  Wis. 
166.      A   direction,    when   explicit 


pressed  with  a  trust  for  that  pur- 
pose, is  treated  as  real  estate,  and 
passes  under  a  devise  of  land. 
Ackroyd  v.  Smithson,  1  Bro.  C.  C. 
503;  Cleveland's  Settled  Estates, 
[1893]  3  Ch.  244;  see  McFadden  v. 
Hefley,  28  S.  C.  317;  Household 
S.  M.  Co.  V.  Vaughan,  17  N.  Y.  St. 


and   positive,   or   a   trust  for  sale,     Rep'r,  332;     see  1  Ames  on  Trusts 
when  absolute  and  necessary,  will,     (2ded.),  491,  n.     When,  however, 

money  is  charged  on  land  for  the 
testator's  widow,  and  she  declines 
to  take  under  the  will,  and  has 
dower,  the  money  remains  personal 
estate.  Becker's  Estate,  150  Penn. 
St.  524. 


however,  work  a  conversion.  Ibid. ; 
Goodier  w.  Edmunds,  supra;  Beck- 
er's Estate,  150  Penn.  St.  524; 
Fahnestock  v.  Fahnestock,  152  id. 
56 ;  Re  Gantert,  136  N.  Y.  106  ; 
Underwood  v.  Curtis,  127  N.  Y. 
626 


CHAP.    XV.]  CONVERSION.  [§  450. 

vice  versa,  where  such  conversion  is  not  contrary  to  the  will 
of  the  donor  expressly  or  impliedly,  and  is  lor  the  interest 
of  the  cestui.^  The  general  rule  is,  that  where  the  testator 
gives  his  personal  property,  or  the  residue  of  his  personal 
property,  or  the  interest  of  his  personal  property, ^  in  trust, 
or  directly  to  several  persons  in  succession,^  and  the  property 
is  of  such  a  nature  that  it  grows  less  valuable  by  time,  as 
where  it  is  leaseholds  or  annuities,  or  where  the  property  is 
wasted  or  consumed  in  the  use  of  it,  the  court  implies  an  in- 
tention that  such  property  shall  be  converted  into  a  fixed 
and  permanent  form,  so  that  the  beneficiaries  may  take  the 
use  and  income  of  it  in  succession,  (a)  Accordingly,  in 
England,  such  property  is  converted  into  the  investments 
allowed  by  law;  and  in  the  United  States  it  must  be  con- 
verted into  safe  investments,  according  to  the  rules  in  force 
in  the  State  where  the  trust  is  to  be  administered ;  and  if  the 
trustees  fail  to  do  so  in  a  reasonable  time,  they  will  be  guilty 
of  a  breach  of  trust.  ^ 

§  450.  The  court  presumes  an  intention  that  perishable 
property  shall  be  converted,  where  several  persons  are  to 
enjoy  it  in  succession;  not  so  much  from  the  actual  fact  of 
such  an  intention,  as  from  its  being  a  convenient  means  of 
adjusting  the  rights  of  those  who  are  to  enjoy  the  property 
in  succession.^  This  presumption  is  made,  unless  a  contrary 
intention  is  indicated  upon  the  face  of  the  will.  The  later 
authorities  give  effect  to  slighter  indications  than  the  older 

^  Ex  parte  Jordan,  4  Del.  Ch.  615. 

^  Howe  V.  Dartmouth,  7  Ves.  137 ;  Cranch  v.  Cranch  (cited  id.  142, 
147;  Litchfield  v.  Baker,  2  Beav.  481;  Crowley  v.  Crowley,  7  Sim.  427; 
Sutherland  r.  Cook,  1  Col.  C.  C.  498;  Johnson  v.  Johnson,  2  Col.  C.  C. 
441) ;  Fearns  v.  Young,  9  Ves.  549  ;  Benn  v.  Dixon,  10  Sim.  030  ;  Oakes  r. 
Strachey,  13  Sim.  414. 

"  House  V.  Way,  12  Jur.  959. 

"  Bate  V.  Hooper,  5  De  G.,  M.  &  G.  338;  seejoo,9/.  Chap.  XVITI. 

6  Cape  V.  Bent,  5  Hare,  35;  Pickering  i:  Pickering,  4  Myl.  &  Cr.  303  ; 
Hinves  v.  Hinves,  2  Hare,  611;  Prendergast  v.  Prendergast,  3  H.  L.  Cas. 
195;  see  Cotton  v.  Cotton,  14  Jur.  950. 

(a)  Pyott's  Estate,  160  Penn.  St.  441. 

627 


§  450.]  CONVERSION.  [chap.  XV. 

cases.  ^  The  object  of  the  rule  is  to  secure  a  fair  adjustment 
of  the  rights  of  all  the  cestuis  que  trust  in  succession;  for  if 
the  property  would  greatly  depreciate  in  value  in  the  hands 
of  the  first  taker,  the  remainder-man  might  fail  to  receive 
the  benefit  intended  to  be  given  to  him ;  the  court,  therefore, 
orders  the  perishable  property  to  be  converted  into  a  perma- 
nent fund,  unless  a  contrary  intention  is  indicated  in  the 
will.  So,  if  property,  not  liable  to  waste,  but  bearing  a  high 
rate  of  interest,  and  subject  to  great  risks,  is  given  to  one 
person  for  life,  and  to  another  in  remainder,  the  beneficiary 
in  remainder  may  call  for  a  conversion  of  the  stocks  or  bonds 
into  a  less  hazardous  and  more  permanent  investment,  that 
their  interests  may  be  better  protected  ;2  but  the  court  will 
not  call  in  real  securities  without  directing  an  inquiry 
whether  it  is  necessary  for  the  safety  or  benefit  of  all  par- 
ties.^ On  the  other  hand,  the  court  applies  the  same  princi- 
ples to  the  protection  of  the  first  taker  or  tenant  for  life  ;  and 
so,  if  there  are  reversionary  interests  that  may  not  fall  in 
and  become  beneficial  to  the  tenant  for  life,  but  may  come 
into  the  possession  of  the  remainder-man,  the  court  may  order 
the  reversions  to  be  sold,  and  the  purchase-money  to  be  in- 
vested, so  that  the  tenant  for  life  may  have  the  income  for  life.* 
And  if  the  trustees  have  a  discretion  as  to  the  time  of  sale, 
which  the  court  cannot  control,  and  they  sell  when  the  rever- 
sion falls  in,  the  court  will  give  the  tenant  for  life  the  differ- 
ence between  the  actual  price  for  which  the  reversion  sold, 
and  its  estimated  value  one  year  after  the  testator's  death.  ^  (a) 

1  Morjran  v.  Morgan,  14  Beav.  82 ;  Craig  v.  Wheeler,  29  L.  J.  Ch. 
374;  Mackiet?.  Mackie,  5  Hare,  77;  VVightwick  v.  Lord,  6  H.  L.  Cas.  217; 
Blann  v.  Bell,  5  De  G.  &  Sm.  658;  2  De  G.,  M.  &  G.  775;  Burton  v. 
Mount,  2  De  G.  &  Sm.  383;  Howe  v.  Howe,  14  Jur.  359;  2  Spence,  Eq. 
Jur.  42,  554. 

2  Thornton  v.  Ellis,  15  Beav.  193;  Blann  v.  Bell,  5  De  G.  &  Sm.  658; 
2  De  G.,  M.  &  G.  775 ;   Wightwick  v.  Lord,  6  H.  L.  Cas.  217. 

8  Howe  V.  Dartmouth,  7  Ves.  150. 

*  Ibid. ;  Fearns  v.  Young,  9  Ves.  549;    Dimes  v.  Scott,  4  Buss.  200. 

s  Wilkinson  v.  Duncan,  23  Beav.  469. 

(o)  When  there  is  no  undue  de-    verting   land   into  invested   money 
lay  on  the  part  of  trustees  in  con-     for  the  benefit  of  the  tenant  for  life, 
628 


CHAP.    XV.]  CONVERSION.  [§  451. 

§  451.  On  the  other  hand,  an  intention  may  be  implied 
from  the  form  or  terms  of  the  gift,  that  the  property  is  to  be 
enjoyed  by  the  cestuis  que  trust  in  specie;  as,  if  there  is  a 
specific  gift  of  leaseholds  or  of  stocks,  the  specific  legatee 
will  take  the  rents  and  dividends  of  the  specified  property.* 
A  general  direction  to  pay  rents  to  the  tenant  for  life,  after 
the  mention  of  leaseholds,  is  a  specific  devise ;  ^  but  it  is  still 
a  matter  of  doubt  upon  the  authorities,  whether  such  a  direc- 
tion, unconnected  with  any  mention  of  the  leaseholds,  is  a 
specific  devise  or  not.^  A  mere  direction  to  pay  dividends 
is  not  a  specific  devise  of  the  stocks.*  But  a  bequest  of  the 
"interest,  dividends,  or  income  of  all  moneys  or  stock,  and 
of  all  other  property  yielding  income  at  the  testator's  death," 
has  been   held  to  be  specific,    and   the   trustees   could    not 

1  Vincent  v.  Newcombe,  Younge,  599  ;  Lord  v.  Godfrey,  4  Madd.  455; 
Pickering  v.  Pickering,  4  Myl.  &  Cr.  299  ;  Hubbard  v.  Young,  10  Beav. 
205  ;  Harris  v.  Poyner,  1  Dr.  181 ;  Mills  v.  Mills,  7  Sim.  501  ;  Dunbar  r. 
"Woodcock,  10  Leigh,  G28  ;  Harrison  v.  Foster,  9  Ala.  955  ;  Ilale  r.  Burro- 
dak",  1  Eq.  Ca.  Ab.  461;  Bracken  v.  Beatty,  1  Rep.  in  Ch.  110;  l>ans  r. 
Iglehart,  6  G.  &  J.  171 ;  Alcock  v.  Sloper,  2  Myl.  &  K.  702;  Pickering  i;. 
Pickering,  2  Beav.  57. 

2  Blann  v.  Bell,  2  De  G.,  M.  &  G.  775  ;  Crowe  v.  Crisford,  17  Beav. 
507  ;  Hood  v.  Claphan),  19  Beav.  90;  Marshall  v.  Brenner,  2  Sm.  &  (iif. 
237;  Elmore's  Trusts,  6  Jur.  (n.  s.)  1325. 

'  Goodenough  v.  Treniamondo,  2  Beav.  512  ;  Hunt  v.  Scott,  1  De  G.  & 
Sm.  219;  Wearing  r.  "Wearing,  23  Beav.  99;  Pickup  v.  Atkinson,  4  Hare, 
624 ;  Craig  v.  "Wheeler,  29  L.  J.  Ch.  374  ;  Vachell  v.  Roberts,  32  Beav.  140; 
Harvey  v.  Harvey,  5  Beav.  134;  Att.  Gen.  v.  Potter,  id.  164. 

*  Xeville  v.  Fortescue,  16  Sim.  333  ;  Blann  v.  Bell,  2  De  G.,  ]\L  &  G. 
775;  Sutherland  v.  Cook,  1  Col.  C.  C.  503;  Hood  f.  Clapham,  19  Beav.  90. 

the  tenant  for  life  is  entitled  to  the  end  of  a  year  from  the  testator's 

rents    accrued    between    the    time  death.     In   re  Game,  [1897]   1  Ch. 

when  the  trust  for  conversion  takes  881.      An    implied    trust    for  sale 

effect  and  the  time  when  the  con-  may  work  a  conversion.     See  In  re 

version  is  actually  effected.     Hope  Wintle,  [1896]  2  Ch.    711.     A  dis- 

V.  D'lledouville,  [1893]  2  Ch.  3(51.  cretion  given  to  trustees  as  to  the 

A  power  of  distress  or  a  direction  to  time  of  sale  shows  an  intention  that 

pay  rents  do  not  sufficiently  show  the  property  is  not  to  be  iinmedi- 

an  intention  that  leaseholds  are  to  ately    converted.      In  re   Pitcairu, 

be  enjoyed  in  specie,  but  these  are  [1896]  2  Ch.  199. 
properlv  treated  as  converted  at  the 

629 


§  451.]  CONVEESION.  [chap.    XV. 

convert.^  (a)  If  the  devise  is  specific,  the  direction  to  vary 
the  securities  will  not  affect  the  rights  of  a  specific  legatee, 
for  such  direction  is  only  for  the  protection  of  the  trust  fund.^ 
A  debt  due  to  a  testator  is  not  devised  specifically,  although 
it  is  embraced  in  the  residue  of  an  estate  specifically  devised, 
as  it  is  in  no  sense  in  the  nature  of  an  investment,  and  is 
therefore  to  be  converted.^  And  if  a  testator  use  any  ex- 
pression implying  that  leaseholds  or  stocks  or  other  property 
are  not  to  be  converted,  as  if  he  names  a  time  for  the  sale  of 
them,  as  at  or  after  the  death  of  the  tenant  for  life,  the  trus- 
tees will  have  no  power  to  convert  the  property  until  the 
time  arrives.*  But  where  a  testator  gave  to  his  wife  the 
whole  of  the  interest  arising  from  his  property,  both  real  and 
personal,  during  her  life,  and  at  her  decease  to  be  disposed 
of  as  therein  directed,  it  was  held  that  the  trustees  must 
convert,  as  there  was  no  indication  that  she  should  enjoy 
any  of  the  property  in  specie.  ^  (b) 

1  Boys  V.  Boys,  28  Beav.  436. 

2  Lord  V.  Godfrey,  4  ]\ladd.  455;  Llewellyn's  Trusts,  29  Beav.  171; 
Morgan  v.  Morgan,  14  Beav.  72. 

3  Holgate  V.  Jennings,  24  Beav.  630.  There  is  some  doubt  upon  the 
principles  of  this  case. 

*  Collins  V.  Collins,  2  Myl.  &  K.  703;  Vaughan  v.  Buck,  1  Phill.  78; 
Lichfield  v.  Baker,  13  Beav.  451;  Harris  v.  Poyner,  1  Dr.  180;  Chambers 
V.  Chambers,  15  Sim.  190:  Daniel  v.  Warren,  2  Y.  &  Col.  Ch.  290;  Rowe 
V.  Rowe,  29  Beav.  276;  Alcock  v.  Sloper,  2  Myl.  &  K.  699;  Hind  v.  Selby, 
22  Beav.  373;  Bowden  v.  Bowden,  17  Sim.  65;  Burton  v.  ]\Iount,  2  De  G. 
&  Sm.  383 ;  Skirving  v.  Williams,  24  Beav.  275;  Hinves  v.  Hinves,  3  Hare, 
609;  Harvey  v.  Harvey,  5  Beav.  134;  Bethune  v.  Kennedy,  1  Myl.  &  Cr. 
114;  Hunt  v.  Scott,  1  De  G.  &  Sm.  219  ;  Pickering  v.  Pickering,  2  Beav. 
31 ;  4  Myl.  &  Cr.  289  ;  Prendergast  v.  Prendergast,  3  H.  L.  Cas.  195;  Hood 
V.  Clapham,  19  Beav.  90;  Neville  v.  Fortescue,  16  Sim.  333  ;  Howe  v. 
Howe,  14  Jur.  359. 

5  Benn  v.  Dixon,  1  Phill.  76;  Thornton  v.  Ellis,  15  Beav.  193  ;  Morgan 
V.  Morgan,  14  Beav.  92 ;  Blann  v.  Bell,  2  De  G.,  M.  &  G.  775 ;  Hood  v. 
Clapham,  19  Beav.  90  ;  Lichfield  v.  Baker,  13  Beav.  481. 

(a)  See    Johnson   v.    Goss,    128  dependent  upon  a  trust  in  the  ■will 

Mass.  433  ;  Metcalf  v.  Framingham  which  violates  the  rule  against  per- 

Parish,  id.  370 ;  Trustees  v.  Tufts,  petuities,  are  not  invalidated  there- 

151  Mass.  76;  Smith  v.  Lansing,  53  by.  Lawrence  u.  Smith,  163  Til.  149. 
N,  Y.  S.  633.    Specific  legacies,  not  (b)  See  Hovey  v.  Dary,  154  Mass. 

630 


CHAP.  XV.] 


INVESTMENT. 


[§  452. 


§  452.  After  a  trustee  has  reduced  the  trust  fund  to  pos- 
session, and  has  secured  the  ])roper  custody,  and  after  lie  has 
converted  so  much  of  tlie  property  as  was  necessary  to  sell 
for  money,  his  next  duty  is  to  invest  the  proceeds.  It  is  one 
of  the  most  important  of  the  duties  of  trustees  to  invest  the 
trust  fund  in  such  manner  that  it  shall  be  safe,  and  yield  a 
reasonable  rate  of  income  to  the  cestui  que  trust .  If  there 
are  directions  in  the  instrument  of  trust  as  to  the  time, 
manner,  and  kind  of  investment,  the  trustees  must  follow  the 
direction  and  power  so  given  them.  The  creator  of  a  trust 
may  specify  the  kind  of  investment,  and  what  security  may 
be  taken,  or  he  may  dispense  with  all  security.^  In  the 
absence  of  such  directions  and  powers,  the  trustees  must  be 
governed  by  the  general  rules  of  the  court,  or  by  the  statutes 
and  laws  of  the  State  in  which  the  trust  is  to  be  executed. 
If  there  are  no  directions  in  the  instrument,  nor  rules  of 
court,  nor  statutory  provisions  in  relation  to  investments, 
they  must  be  governed  by  a  sound  discretion  and  good  faith.^ 

1  Denike  v.  Harris,  84  N.  Y.  89. 

2  As  a  general  rule,  investments  by  executors  and  testamentary  trus- 
tees, which  take  the  funds  beyond  the  jurisdiction  of  the  court,  will  not 

7  ;  Bowditch  w.  Ayrault,  138  N.  Y.     verted  to  adjust  partnership  equi- 
222;  Smith   v.   Smith,   174  111.  52;    ties,  and  when  necessary  for   that 


Lackey's  Estate,  149  Penn.  St.  7; 
Irwin  x\  Patchen,  164  id.  51 ;  Rudy's 
Estate,  185  id.  .359.  A  conversion 
is  implied  when  a  will  blends  real 
and  personal  property  as  a  common 
fund,  which  is  bequeathed  as  money. 
Marshall's  Estate,  147  Penn.  St.  77. 


purpose,  the  intent  to  convert  is 
presumed.  See  Darrow  v.  Calkins, 
154  N.  Y.  503;  Harris  v.  Harris, 
153  Mass.  430;  Oliver  v.  Oliver 
(Ky.),  49  S.  W.  473. 

When  executors  have  sold  land 
under  a  general  power  in  the  will, 


So  of  a  direction  to  "  invest  at  in-    the  proceeds  may  be  used  to  pay  the 


terest."  Davenport  v.  Kirk  land, 
156  111.  1G9;  see  Fahnestock  v. 
Fahnestock,  152  Penn.  St.  56  ;  Allen 
V.  Watts,  98  Ala.  384;  Brown  v. 
Miller  (W.  Va.),  31  S.  E.  956. 

In  England  partnership  realty  is 
treated  as  converted  into  personalty 


testator's  debts.  Bolton  v.  Myers, 
146  N.  Y.  257;  31  N.  Y.  S.  588. 
But  when  a  conversion  of  an  in- 
fant's realty  is  effected  in  invitum, 
as  by  eminent  domain  proceedings, 
the  j^roceeds  are  to  be  treated  as 
realty  until  he   is   of  age,   and   go 


for  all  purposes ;  in  this  country,  it  to  his  heirs  in  case  of  his  death, 
usually  continues  realty,  except  so  Wetherill  v.  Hough,  52  X.  J.  Eq. 
far  as  it  is  to  be  regarded  as  con-    683 ;  In  re  Rochester,  136  X.  Y.  S3. 

631 


§  452.]  INVESTMENT.  [CHAP.   XV. 

They  must  not  have  speculation  in  view,  but  rather  a  perma- 
nent investment,  considering  both  the  probable  income  and 
the  probable  safety  of  the  capital.^  A  trustee  should  clearly 
indicate  the  investments  he  makes  on  behalf  of  the  trust. 
If  he  invests  apparently  in  his  private  capacity  and  after  loss 
claims  it  was  a  trust  transaction,  he  opens  himself  to  suspi- 
cion of  maladministration. 2  A  trustee  ought  not  as  a  rule  to 
invest  in  second  mortgages.^  Trustees  ought  to  invest  in 
government  or  State  securities,  or  in  bonds  and  mortgages  ou 
unincumbered  real  estate.  The  rule  is  not  inflexible,  but 
subject  to  the  higher  rule  that  the  trustees  are  always  to 
employ  such  care  and  diligence  in  the  trust  business  as  care- 
ful men  of  discretion  and  intelligence  employ  in  their  own 
affairs.*  In  Rhode  Island,  neither  statute  nor  rule  of  court 
fixes  any  special  class  of  investments  for  trust  funds,  and 
trustees  are  therefore  only  required  to  be  prudent,  having 
regard  to  the  income  and  the  permanence  and  safety  of  the 
investment.^  Any  loss  occasioned  by  his  negligence  he 
must  bear.^  It  is  the  duty  of  trustees  having  funds  for  in- 
vestment to  Iceep  them  invested,  and  if  they  retain  trust- 
moneys  uninvested  beyond  a  reasonable  time,  six  months 
being  usually  allowed,  they  are  prima  facie  liable  for  in- 
terest.'^ Voluntary  investments  must  not  be  made  by  a  trus- 
tee beyond  the  jurisdiction  of  the  court  having  charge  of  the 
trust,  except  in  case  of  necessity  for  the  saving  of  the  fund. 
If  he  does  so,  the  investment  is  at  his  peril  of  loss.^  Where 
a  trustee  invested  in  a  confederate  bond  which  perished  on 
be  sustained,  and  the  trustee  makes  such  investments  at  the  peril  of  being 
held  responsible  for  the  safety  of  investment.  This  rule  is  not  inflexible, 
but  the  circumstances  must  be  very  unusual  to  justify  the  exception  to  it. 
Cruiston  v.  Olcott,  84  N.  Y.  339. 

1  Emery  v.  Batchelder,  78  Me.  233. 

2  State  V.  Roeper,  82  Mo.  57. 

«  Com'rs  of  Somerville  v.  Johnson,  36  N.  J.  Eq.  211;  Tuttle  v.  Gil- 
more,  id.  617. 

*  Mills  V.  Hoffman,  26  Hun,  594. 

5  Peckham  v.  Xewton,  15  R.  I.  321. 

6  Cogbill  V.  Boyd,  77  Ya.  450. 

'  Lent  r.  Howard,  89  X.  Y.  169. 
8  Ormiston  v.  Olcott,  84  N.  Y.  339. 
632 


CHAP.    XV.]  INVESTMENT.  [§  453. 

liis  hands,  he  was  held  not  liable,  having  acted  in  good  faith 
and  with  due  discretion  according  to  the  lights  of  the  time  of 
investing.  1  The  test  of  liability  always  is  whether  or  no  the 
trustees  have  acted  as  prudent  men  would  have  acted  in  the 
management  of  their  own  property. ^ 

§  453.  There  is  one  rule  that  is  universally  applicable  to 
investments  by  trustees,  and  that  rule  is,  that  trustees  cannot 
invest  trust-moneys  in  personal  securities.  If  trustees  have 
a  discretion  as  to  the  kind  of  investments,  it  is  not  a  sound 
discretion  to  invest  in  personal  securities.^  Lord  Ilard- 
wicke  said,  that  "a  promissory  note  is  evidence  of  a  debt, 
but  no  security  for  it.  "^  Baron  Hothman  observed,  that 
"lending  on  personal  credit  for  the  purpose  of  a  larger  in- 
terest was  a  species  of  gaming. "  ^  Lord  Kenyon  said,  that 
"no  rule  was  better  established  than  that  a  trustee  could  not 
lend  on  mere  personal  security,  and  it  oiiglit  to  he  rung  in  the 
ears  of  every  one  who  acted  in  the  character  of  trustee."^ 

1  Waller  r.  Catlett,  83  Va.  200. 

=i  Godfrey  v.  Faulkner,  23  Ch.  D.  483. 

8  Walker  v.  Symonds,  3  Swanst.  62;  Darke  v.  Martyn,  1  Beav.  525; 
Terry  v.  Terry,  Pr.  Ch.  273  ;  Adye  v.  Feuilleteau,  1  Cox,  24 ;  Vigrass  v. 
Binfield,  3  Madd.  62;  Harden  v.  Parsons,  1  Eden,  149,  note  (a)  ;  Anon. 
Lofft,  492;  Keble  r.  Tiiompson,  3  Bro.  Ch.  112;  Wilkes  v.  Steward,  G. 
Coop.  6  ;  Clough  r.  Bond,  3  Myl.  &  Cr.  496  ;  Pocock  v.  Reddington,  5  Ves. 
799  ;  Collis  v.  CoUis,  2  Sim.  365 ;  Blackwood  v.  Borrowes,  2  Conn.  & 
Laws.  477  ;  Watts  v.  Girdleston,  6  Beav.  188;  Graves  v.  Strahan,  8  De  G., 
M.  &  G.  291  ;  Fowler  v.  Reynal,  3  Mac.  &  G.  500  ;  Smith  v.  Smith,  4 
Johns.  Ch.  2S1  ;  Nyce's  Est.,  5  Watts  &  S.  245  ;  Soyer's  App.,  5  Penn. 
St.  377  ;  Willcs's  App.,  22  id.  3:50 :  Gray  v.  Fox,  Saxton,  Ch.259  ;  Hard- 
ing V.  Earned,  4  Allen,  426  ;  Clark  v.  Garfield,  8  Allen,  427;  Moore  v. 
Hamilton,  4  Fla.  112  ;  Spear  v.  Spear,  9  Rich.  Eq.  184;  Barney  v.  Saun- 
ders, 16  IIow.  545,  546.  But  see  Kuowlton  v.  Brady,  17  N.  H.  458.  Tak- 
ing notes  for  a  loan  without  security  is  negligence,  and  renders  the  trustee 
responsible  if  the  debtor  becomes  insolvent.  Judge  of  Probate  v.  Mathes, 
60  N.  H.  433. 

*  Walker  v.  Symonds,  3  Swanst.  81,  note  (a),  citing  Ryder  v.  Bick- 
ertun. 

s  Adye  v.  Feuilleteau,  1  Cox,  25. 

6  Holmes  v.  Dring,  2  Cox,  1 ;  Wynne  v.  Warren,  2  Heisk.  IIS;  Dunn 
V.  Dunn,  1  S.  C.  350.     A  trustee,  investing  iu  personal  securities,  continues 

633 


§  453.] 


INVESTMENT. 


[chap.  XV. 


It  makes  no  difference  that  there  are  several  joint  prom- 
isors ;  ^  nor  that  the  loan  is  to  a  person  to  whom  the  testator 
loaned  money  on  his  personal  promise  ;2  nor  will  personal 
sureties  justify  the  loan.^  There  must  be  express  authority 
in  the  instrument  of  trust  to  authorize  a  loan  on  personal 
promises.^  Loose,  general  expressions,  leaving  the  nature 
of  the  investments  to  the  trustees,  will  not  justify  such 
loans.  ^  (a)     All  the  terms  and  conditions  of  a  loan,   to  be 

responsible  for  them  after  a  transfer  to  his  successor,  until  they  are  paid 
or  legally  invested.  For  those  that  are  paid  he  is  relieved  from  respon- 
sibility, although  the  money  may  never  be  received  by  the  trust  estate.  In 
re  Foster's  Will,  15  Hun  (N.  Y.),  387. 

1  Ibid. ;  Clark  v.  Garfield,  8  Allen,  427. 

2  Styles  V.  Guy,  1  Mac.  &  G.  423. 

3  AVatts  c.  Girdleston,  6  Beav.  188. 

4  Forbes  v.  Ross,  2  Bro.  Ch.  430  ;    2  Cox,  113;  Child  i'.   Child,  20 
Beav.  50. 

5  Pocock  V.  Reddington,  5  Ves.  799  ;  Wilkes  v.  Stewart,  G.  Coop.  6  ; 
Mills  I'.  Osborne,  7  Sim.  30  ;  Wynne  v.  Warren,  2  Heisk.  118. 


(«)  See  52  &  53  Vict.  c.  32, 
§  3;  Hume  v.  Lopes,  [1892]  A.  C. 
112  ;  In  re  National,  &c.,  Building 
Society,  43  Ch.  D.  431  ;  In  re 
Manchester  Royal  Infirmary,  id. 
420;  Elve  v.  Boyton,  [1891]  1  Ch. 
500  ;  In  re  Owthwaite,  [1891]  3  Ch. 
494  ;  In  re  Smith,  [189G]  2  Ch.  590; 
Peckham  v.  Newton,  15  R.  I.  321  ; 
Hunt,  Appellant,  141  Mass.  515  ; 
Dickinson,  Appellant,  152  Mass.  184 ; 
Herrick's  Es^tate,  12  N.  Y.  S.  105  ; 
14  id.  947  ;  Blauvelfc's  Estate,  20  id. 
119;  Nobles  v.  Hogg,  36  S.  C.  322; 
Howard  v.  Quattlebaum,  46  S.  C. 
95;  Simmons  v.  Oliver,  74  Wis. 
633;  Durrett  v.  Com'th,  90  Ky.  312  ; 
Hite  V.  Hite,  93  Ky.  2.57;  Calloway 
V.  Calloway  (Ky.),'  36  S.  AV.  241 ; 
Brewster  r.  Deniai'est,  48  N.  J.  Eq, 
559  ;  Dufford  v.  Smith,  46  id.  216  ; 
Lacoste  v.  Splivalo,  64  Cal.  35  ;  40 
Am.  Dec.  513-516.  A  trustee  can- 
63-i 


not  properly  invest  the  trust  funds 
in  speculative  real-estate  bonds,  or 
in  second-mortgage  railroad  bonds, 
or  in  any  speculative  railroad  stocks 
or  bonds,  though  paying  dividends, 
especially  when  the  railroad  is  out- 
side the  jurisdiction  of  the  courts 
which  pass  upon  his  accounts. 
Clark  V.  Andei'son,  13  Bush,  111; 
Gilbert  v.  Kolb,  85  Md.  627  ;  Bar- 
ker's Estate,  159  Penn.  St.  518; 
Dickinson,  Appellant,  152  Mass. 
184;  White  v.  Sherman,  108  111. 
589 ;  McCuUough  v.  McCullough, 
44  N.  J.  Eq.  313,  and  note;  Minne- 
apolis Trust  Co.  V.  Menage  (^Minn.), 
76  N.  W.  195. 

AVhen  a  trustee  invests  in  bonds, 
and  pays  a  premium  therefor,  he  is 
to  make  such  deduction  from  the 
interest  as  will  suffice  to  make  the 
principal  intact  when  the  bonds 
mature.     New  York  Life  Ins.  Co.  v. 


CHAP.   XV.]  INVESTMENT.  [§  454 

made  on  personal  security,  must  be  strictly  complied  with ; 
as,  if  a  loan  is  authorized  to  a  husband,  upon  tlie  written 
consent  of  the  wife,  such  consent  must  l)e  had  in  the  required 
form;^  and  a  subsequent  assent  will  nut  save  the  trustees 
from  responsibility.^  An  authority  to  loan  on  personal 
security  will  not  justify  the  trustees  in  lending  to  one  of 
themselves;^  nor  will  it  justify  them  in  lending  to  a  rela- 
tion, for  the  purpose  of  accommodating  him.*  (a) 

§  454.  So,  in  the  absence  of  express  authority,  the  emi)loy- 
mcnt  of  trust  funds  in  trade  or  speculation,  or  in  a  manufac- 
turing establishment,   will    be  a  gross    breach  of   trust.^(?>) 

1  Cocker  t:  Quayle,  1  11.  &  ^l.  535;  Pickard  v.  Anderson,  L.  R.  13  Eq. 
608 ;  Forbes  v.  Koss,  2  Bro.  Ch.  4-30. 

2  Rateman  v.  Davis,  3  Madd.  98. 

«  Forbes  v.  Ross,  2  Bro.  Ch.  430  ;  2  Cox,  113  ; v.  Walker,  5  Russ. 

7 ;  Stickney  c.  Sewell,  1  Myl.  &  Cr.  814 ;  Francis  v.  Francis,  5  De  G.,  M. 
&  G.  108;  De  Jarnette  v.  De  Jarnette,  41  Ala.  708. 

*  Ibid. ;  Langston  v.  Ollivant.  G.  Coop.  33 ;  Cock  v.  Goodfellow,  10 
Mod.  489 ;  Fitzgerald  r.  Pringle,  2  Moll.  534. 

8  Munch  V.  Cockerell,  5  Myl.  &  Cr.  178 ;  Kyle  v.  Barnett,  17  Ala.  306  ; 
Flagg  v.  Ely,  1  Edm.  (N.  Y  )  20G;  King  v.  Talbott,  40  N.  Y.  96 ;  50  Barb. 
453;  Tucker  v.  State,  72  Ind.  242.  And  parol  request  by  testator  to  trus- 
tee to  carry  on  the  business  for  the  benefit  of  his  family  is  inadmissible 
to  prove  authority.     Raynes  v.  Raynes,  51  N.  11.  201. 

Kane,  45  N.  Y.  S.  543  ;  In  re  Iloyt,  on  bonds  if  they  are  unexpectedly 

50  id.  623 ;  New  York  Life  Ins.  Co.  called   in.     Cridlaud's   Estate,    132 

V.  Baker,  50  id.   618.     "  If  the  in-  Peun.  St.  479. 

vestment  be  in  securities  purchased  (</)  Trustees  having  a  power, 
at  a  premium,  only  such  part  of  the  with  the  consent  of  the  tenant  for 
proceeds  therefrom  can  be  counted  life,  to  lend  on  personal  securities, 
as  income  as  shall  leave  the  fund  may  lend  on  such  securities  to  the 
unimpaired  at  the  maturity  of  the  tenant  for  life  himself.  //jreLaing's 
investment.  Consideration  should  Settlement,  [1899]  1  Ch.  593,  con- 
be  had  for  any  contingencies  in  the  troverting  Lewin  on  Trusts  (10th 
investment  market  that  are  reason-  ed.),  335. 

ably  probable  within  the  life  of  the  (6)  See    Butler    v.    Butler,    164 

life   beneficiary."     New  York  Life  111.   171 ;  Young's  Estate,  97  Iowa, 

Ins.  Co.  V.  Sands,  53  N.  Y.  S.  320.  218;    In   re   Clary,    112    Cal.    292; 

The  trustee  is  not  liable  person-  Wolfort  v.  Reilly,  133  Mo.  463 ;  St. 

ally  for  loss  of  the  premium  paid  Paul  Trust  Co.  c.  Kittson,  62  Miuu. 

635 


§  454.]  INVESTMENT.  [cHAP.    XV. 

However  advantageous  such  an  investment  may  appear,  the 
trustee  investing  the  funds  in  such  undertakings  will  he 
compelled  to  make  good  all  losses,  and  to  account  for  and 
pay  over  all  profits.^  The  law  discourages  all  such  use  of 
trust  funds,  by  rendering  it  certain  that  the  trustee  shall  make 
no  i)rorit  from  such  investments,  and  that  he  shall  be  respon- 
sible for  all  losses.  And  if  a  trustee  stands  by,  and  sees  his 
cotrustee  employ  the  funds  in  that  manner,  he  will  be 
equally  liable. ^  The  same  rule  applies  if  the  trustees  simply 
continue  the  trade  or  business  of  the  testator.^  It  is  their 
duty  to  close  up  the  trade,  withdraw  the  fund,  and  invest  it 
in  proper  securities  at  the  earliest  convenient  moment;  and 
the  same  rule  applies  although  the  trustees  may  have  been 
the  business  agents  or  partners  of  the  testator.*  Nor  will  a 
power  "to  place  out  at  interest,  or  other  way  of  improve- 
ment," authorize  the  employment  of  the  money  in  a  trading 
concern.^  In  one  case  the  dii-cction  was  to  "employ"  the 
money,  and  it  was  thought  that  it  savored  of  trade,  and 
might  be  employed  in  that  manner;^  but  it  would  not  be  safe 

1  French  v.  Hobson,  9  Ves.  103 ;  Brown  v.  De  Tastet,  Jac.  284;  Cook 
r.  CoUingridge,  id.  607;  Crawshay  v.  Collins,  15  Ves.  218;  2  Russ.  325; 
Featherstonhaugh  v.  Fenwick,  17  Ves.  298  ;  Docker  v.  Somes,  2  Myl.  & 
K.  655  ;  Wedderburn  v.  AVedderburn,  2  Keen,  722 ;  4  Myl.  &  Cr.  41 ; 
Martin  v.  Rayborn,  42  Ala.  648. 

2  Booth  V.  Booth,  1  Beav.  125;  Ex  parte  Heaton,  Buck.  386  ;  Bates  v. 
Underbill,  3  Redf.  (N.  Y.)  365. 

2  Ibid. ;  Kirkman  v.  Booth,  11  Beav.  273.  In  some  cases,  an  executor 
is  bound  to  complete  the  contracts  of  the  testator.  Collinson  v.  Lister,  20 
Beav.  356. 

*  Wedderburn  v.  Wedderburn,  2  Keen,  722  ;  4  Myl.  &  Cr.  41. 

5  Cock  V.  Goodfellow,  10  Mod.  489. 

6  Dickinson  v.  Player,  C.  P.  Coop.  178  (1837,  1838). 

408;    Warren    r.    Union    Bank    of  When   loss   results  from  an  un- 

Rochester,  157  N.  Y.  259.      A  trus-  authorized  investment,    the   trustee 

tee  who  uses  the  trust-money  in  his  will  be  required    to   make   it  good 

own  business,  or  in  speculation,  is  as    against    an    infant    beneficiary, 

an  insurer   of  the    fund  and  of  its  although    the    securities    cannot  be 

productiveness.     Bangor  v.  Beal,  85  returned  to  him.     Head   r.  Gould, 

Maine,  129  ;  Re  Myers,  131  N.  Y.  [1898]  2  Ch.  250. 
409;  Ward  v.   Tiukham,  65  Mich. 
695. 

636 


CHAP.  XV.]     BANK  SHARES  AND  CORPORATIONS.      [§  455. 

for  trustees  to  rely  upon  that  case  as  an  authority,  even  if 
their  trust  instrument  contains  a  similar  direction.  If  the 
settlor  authorize  his  trustees  tu  continue  tiie  fund  in  a  trad- 
ing firm,  it  will  be  a  breach  of  trust,  if  the  trustees  allow 
the  fund  to  remain  after  a  change  in  the  firm,  as  by  the 
death  or  withdrawal  of  one  of  the  partners.^  If  the  trustees 
are  directed  to  continue  the  testator's  trade,  they  can  invest 
none  of  his  general  assets  in  the  business.  They  are  con- 
fined to  the  fund  already  embarked  in  the  trade.  ^  If  the 
trustees  act  in  good  faith  in  continuing  the  testator's  busi- 
ness under  such  directions  in  a  will,  they  will  not  be  liable 
for  any  loss;^  but  they  must  act  in  good  faith  and  without 
collusion  or  interested  motives.  So  trustees  are  not  bound 
to  continue  the  capital  in  such  trade,  and  they  ought  not  to 
do  so  against  their  judgment*  But  if  all  the  cestuis  que  trust 
are  sui  juris,  and  capable  of  acting  for  themselves,  and  they 
desire  an  executor,  administrator,  or  trustee  to  continue  the 
business  of  the  testator  a  few  months,  in  order  to  preserve  it 
for  his  son,  and  the  executor  acts  in  accordance  with  their 
request,  and  uses  his  best  skill  and  judgment  in  the  conduct 
of  the  trade,  he  will  be  allowed  for  the  loss  in  his  accounts.^ 

§  455.  In  England,  trustees  cannot  invest  the  trust  fund  in 
the  stock  or  shares  of  any  bank  or  private  or  trading  corpo- 
ration ;  for  the  capital  depends  upon  the  management  of  the 
directors,  and  is  subject  to  losses.^  It  is  apparent,  that  a 
manufacturing  or  trading  corporation  may  lose  its  whole 
capital  in  the  prosecution  of  its  business  strictly  within  the 
terms  of  its  charter.^     Lord  Eldon  said  of  bank  stock,  that 

^  Cummins  v.  Cummins,  3  Jo.  &  Lat.  64  ;  8  Ir.  Eq.  723. 

2  McXeille  i-.  Acton,  4  De  G.,  M.  &  G.  563;  17  Jur.  104.  And  the 
court  will  keep  separate  the  trade  property,  and  apply  it  exclusively  to  the 
purposes  of  the  trade.  Owen  v.  Delamere,  15  Eq.  Cas.  139  ;  Ex  parte 
llichardson,  3  Madd.  138;  Ex  parte  Garland,  10  Ves.  120. 

8  Paddon  v.  Richardson,  7  De  G.,  M.  &  G.  563. 

4  Murray  v.  Glasse,  23  L.  J.  Ch.  124. 

6  Poole  V.  Munday,  103  Mass.  174. 

«  Ilaynes  v.  Redington,  1  Jo.  &  Lat.  589  ;  7  Ir.  Eq.  405;  Clough  r. 
Bond,  3  Myl.  &  Cr.  400;  Powell  v.  Cleaver,  7  Yes.  142,  n. 

^  Trafford  v.  Boehm,  3  Atk.  440  ;  Mills  v.  :Mill3,  7  Sim.  501  ;  Hancom 

637 


§  455.]  INVESTMENT.  [CHAP.    XV. 

"it  is  as  safe,  I  trust  and  believe,  as  any  government 
security;  but  it  is  not  government  security,  and  therefore 
this  court  does  not  lay  out  or  leave  property  in  bank  stock, 
and  what  this  court  will  decree  it  expects  from  trustees  and 
executors.  "1  By  Lord  St.  Leonards'  Act,  22  &  23  Vict.  35, 
trustees,  not  forbidden  by  the  instrument  of  trust,  are  au- 
thorized to  invest  in  Bank  of  England  or  Ireland  or  East 
India  stock.  This  act  was  held  not  to  authorize  an  invest- 
ment in  these  stocks  of  trust  funds  settled  before  the  passage 
of  the  act.^  By  23  &  24  Vict.  c.  38,  the  original  act  was 
made  retrospective,  and  the  courts  of  chancery  were  author- 
ized to  issue  general  orders,  from  time  to  time,  as  to  the 
investment  of  funds  subject  to  its  jurisdiction,  either  in  three 
per  cent  consolidated  or  reduced,  or  new  bank  annuities,  or 
in  such  other  stocks,  funds,  or  securities  as  the  court  shall 
think  fit;  and  trustees,  having  power  to  invest  trust  funds  in 
government  securities,  or  upon  railway  stocks,  funds,  or 
securities,  may  invest  in  the  stocks,  funds,  or  securities  which 
may  be  designated  by  the  general  order  of  the  court.  In 
pursuance  of  the  statute,  a  general  order  was  issued  in  1861, 
as  follows :  "  Cash  under  the  control  of  the  court  may  be  in- 
vested in  bank  stock,  East  India  stock,  exchequer  bills,  and 
£2  10s.  annuities,  and  upon  freehold  and  copyhold  estates, 
respectively  in  England  and  Wales,  as  well  as  in  consolidated 
<£3  per  cent  annuities,  reduced  £S  per  cent  annuities,  and 
new  X3  per  cent  annuities."  There  are  also  provisions  in 
the  act  by  which  trustees  may  apply  to  the  court  for  leave  to 
change  their  investments  into  those  now  allowed  by  the  act 
and  the  court;  but  the  act  does  not  apply  where  the  fund  is 
settled   specifically   and   there   is   no  power  of  varying  the 

V.  Allen,  2  Dick.  499,  n.  ;  7  Bro.  P.  C.  375  ;  Emelie  v.  Emelie,  id.  259; 
Peat  V.  Crane,  2  Dick.  499,  n.  ;  Clough  v.  Bond,  3  Mjl.  &  Cr.  496. 

1  Howe  V.  Dartmouth,  7  Ves.  150;  Band  v.  Fardell,  7  De  G.,  M.  &  G. 
633 ;  King  v.  Talbott,  40  N.  Y.  86. 

2  Re  Miles's  Will,  5  Jur.  (n.  s.)  1266  ;  Dodson  v.  Sammell,  6  Jur. 
(n.  s.)  137;  1  Dr.  &  Sm.  575.  The  Vice-chancellor  held  the  other  way 
in  Page  v.  Bennett,  2  Gif.  117 ;  Simson's  Trusts,  1  John.  &  H.  89  ;  Mor- 
timer V.  Picton,  4  De  G.,  J.  &  S.  166,  179. 

638 


CHAP.    XV.]  BANK    SHARES    AND   CORPORATIONS.  [§  456. 

securities.^  Courts  may  give  directions  as  to  investments 
by  trustees  by  decrees  in  j»articular  suits,  or  by  the  promul- 
gation of  general  orders  or  rules  of  court.^  (a)  It  is  said  that 
the  public  policy  in  England  of  compelling  trustees  to  invest 
trust  funds  in  government  funds  originated  largely  in  the 
necessities  of  the  government,  and  the  public  advantage  of 
creating  a  market  and  demand  for  government  securities. ^ 

§  456.  The  English  rule,  in  relation  to  investments  of 
trust  funds  in  bank  stock  and  shares  in  trading  and  manu- 
facturing corporations,  prevails  in  New  York  and  Pennsyl- 
vania.* It  is  agreed,  that  trustees  cannot  invest  trust  funds 
in  trade,  nor  directly  in  manufacturing,  nor  in  business  gen- 
erally, nor  in  personal  securities,  unless  there  is  an  authority 
contained  in  the  instrument  of  trust.  The  reasoning  is,  that 
trustees  cannot  use  the  trust  fund  in  carrying  on  a  jtrivate 
manufacturing  establishment,  nor  in  the  business  of  private 
bankers,  nor  in  underwriting,  nor  in  trade  and  commerce, 
and  that  there  is  no  difference  in  principle  between  carrying 
on  such  enterprises  themselves  with  the  trust  fund,  or  lend- 
ing it  to  other  individuals  to  do  so  on  their  personal  security, 
and  buying  shares  or  stocks  in  such  business  corporations 
carried  on  by  other  private  individuals,  or  by  the  trustees 
themselves,  as  officers  or  agents.  Perhaps  these  are  the  only 
States  in  which  the  strict  English  rule  is  holden.  In  3Iary- 
land,  investments  in  bank  stock,  gas  stock,  etc.,  are  good. ^  In 
Massachusetts,  it  is  held  that  trustees  may  invest  in  bank 
stocks,   and  in  the  shares  of   manufacturing  and  insurance 

1  Ward's  Settlement,  2  John.  &  H.  191 ;  Ex  parte  Great  No.  Ry.  Co., 
L.  R.  9  Eq.  274;  In  re  Wilkinson,  id.  343. 

2  Wheeler  v.  Perry,  18  N.  II.  307. 
8  Brown  v.  Wrij^lit,  39  Ga.  96. 

*  Ackerman  r.  Einott,  4  Barb.  626  ;  Hemphill's  App.,  18  Penn.  St.  303  ; 
Worrall's  App.,  22  id.  44;  Morris  v.  Wallace,  3  id.  319;  Xyce's  Est.,  5 
Watts  &  S.  254. 

6  McCoy  V.  Ilorwitz,  02  Md.  183. 

(a)  StoufEer  v.  Clagett  (Md.),  .32  ]\Iiss.  213;  Drake  r.  Crane,  127  Mo. 
Atl.  284  ;  Merritt  y.  Merritt,  48  N.  85;  1  Ames  on  Trusts  (2d  ed.), 
J.  Eq.   1  ;  West  v.  Robertson,  67    491,  n. 

639 


§  456.]  INVESTMENT.  [CHAP.   XV. 

corporations,'  or  in  the  notes  of  individuals  secured  by  such 
stocks  and  shares  as  collateral  security, ^  or  in  certificates  of 
deposit  issued  by  a  National  Bank.^  The  court  justifies  this 
rule  in  an  elaborate  opinion,  affirming  that  such  stocks  are 
subject  to  no  greater  fluctuations  than  government  securi- 
ties ;  that  they  are  as  safe  as  real  securities,  which  may  de- 
preciate in  value,  or  the  title  fail;  that  claims  against  such 
corporations  can  be  enforced  at  law,^  while  government  funds 
can  only  be  enforced  by  supplicating  the  sovereign  power; 
and  that  government  securities  have  hitherto  been  so  limited 
in  amount  that  it  was  impossible  for  the  trust  funds  of  the 
country  to  be  invested  in  that  manner.  The  last  reason  no 
longer  exists.  There  are  now  national,  state,  county,  town, 
and  city  bonds  in  sufficient  amounts  to  absorb  all  trust  funds 
seeking  investment,  and  it  is  not  to  be  denied  that  such  in- 
vestments are  more  permanent  and  safe.  It  may  be  ad- 
mitted, that  great  public  emergencies  and  national  dangers 
have  an  unfavorable  effect  upon  the  value  of  public  securi- 
ties ;  but  such  emergencies  and  dangers  have  the  same  effect 
upon  the  stocks  of  private  corporations.  In  addition  to 
these  depressing  influences,  the  capital  of  such  companies 
runs  the  risks  and  chances  of  trade,  business,  and  specula- 
tion. Calamities  that  depress  public  credit  seldom  occur, 
while  the  risks  of  trade  are  constant.  It  would  seem  to  be 
the  wiser  course  to  withdraw  the  funds,  settled  for  the 
support  of  women,  children,  and  other  parties  who  cannot 
exercise  an  active  discretion  in  the  protection  of  their  inter- 
ests, as  much  as  possible  from  the  chances  of  business.     It 

1  Harvard  Coll.  v.  Amory,  9  Pick.  446. 

2  Lovell  V.  Minot,  20  Pick.  116;  Brown  v.  French,  125  Mass.  410. 
8  Hunt,  Appellant,  141  Mass.  515,  523. 

*  It  is  said  that  loans  by  the  city  of  Boston  always  command  a  higher 
premium  in  the  market  than  the  loans  of  the  Commonwealth.  The  differ- 
ence in  part  is  said  to  be  that  the  city  of  Boston  can  be  sued  upon  its 
contracts,  and  a  judgment  against  it  can  be  satisfied  by  seizing,  upon  an 
execution,  any  property  of  any  citizen  within  the  municipal  limits;  while 
no  suit  can  be  maintained  against  the  State,  but  everything  depends  upon 
the  good  faith  and  honor  of  the  legislature  iu  supplying  the  means  of 
payment. 

640 


CHAP.    XV.]  BANK    SHARES   AND    CORPOKATIONS.  [§  456. 

may  be  said,  that  settlors  may  always  do  this  by  directing  in 
what  manner  the  funds  settled  by  them  shall  be  invested. 
But  it  would  seem  to  be  wiser  for  the  court  to  establish  the 
safest  rule  in  the  absence  of  special  directions,  and  leave  it 
to  the  settlor,  if  he  prefers,  to  direct  a  less  safe  investment.^ 

1  A  large  number  of  cases  have  been  adjudged  in  the  late  confederate 
States,  involving  the  legality  of  investments  by  trustees  in  the  bonds  and 
securities  of  the  confederacy.  No  new  principles  have  been  so  established 
that  it  is  necessary  to  alter  the  text;  but  for  convenience  the  principal 
cases  are  noted  in  this  place.  Under  §  34  of  the  act  of  Nov.  9,  1861,  of 
Alabama,  which  authorized  trustees  to  invest  in  confederate  bonds,  or  to 
receive  payment  in  confederate  notes,  it  was  held  that  trustees  were  jus- 
tified in  making  such  investments  previous  to  the  re-establishment  of  the 
authority  of  the  United  States.  Watson  v.  Stone,  40  Ala.  451 ;  Dockey 
V.  IMcDowell,  41  Ala.  470.  But  a  guardian  was  held  liable  to  account  for 
ihe  cash  in  full,  who  received  payment  in  confederate  notes  after  the 
re-establishment  of  such  authority.  "Where  a  trustee  procured  an  ex  parte 
order  to  invest  in  confederate  bonds,  he  was  held  liable  for  the  loss. 
Snelling  v.  McCreary,  14  Rich.  Eq.  291.  Where  a  trustee  received  pay- 
ment of  a  debt  due  to  the  trust  fund,  in  the  currency  in  common  use,  and 
reinvested  it  in  securities  which  became  worthless  by  the  result  of  the  war, 
he  was  not  held  liable  for  the  loss.  Campbell  v.  Miller,  38  Ga.  304.  To 
the  same  effect  is  Brown  v.  Wright,  39  Ga.  90,  which  contains  an  able 
statement  of  the  policy  of  the  English  government  in  directing  trust 
funds  to  be  invested  in  public  securities. 

In  Virginia,  commissioners  who  collected  money  by  order  of  the  court 
in  confederate  notes,  and  held  a  balance  subject  to  contested  liens  until  it 
became  worthless,  were  held  not  liable  for  the  loss.     Davis  i\  Harman, 

21  Grat.  200.  And  substantially  the  same  rule  was  held  in  Dixon  v. 
McCue,  21  Grat.  374.  In  Morgan  v.  Otey,  21  Grat.  019,  it  was  held 
that  payments  should  be  made  in  the  currency  of  the  day.  See  Kraken 
V.  Shields,  20  Grat.  377.  In  Walker  v.  Page,  21  Grat.  637,  it  was  held 
that  a  sale  of  infant's  lands  for  confederate  money  was  valid  at  the  time 
it  was  made,  and  tliat  further  development  of  events  did  not  vitiate  it.  In 
Myers  v.  Zetelle,  21  Grat.  733,  it  was  held  that  an  agent  or  trustee  who 
in  good  faith  sold  property,  and  invested  the  proceeds  in  confederate 
securities,  at  a  time  when  no  other  investments  were  open  to  him,  was 
protected  from  loss.     And  see  Bird  v.  Bird,  21  Grat.  711  ;  Beery  v.  Irick, 

22  Grat.  614  ;  Campbell  r.  Campbell,  id.  649  ;  Colrane  i'.  Worrel,  30  Grat. 
434. 

In  State  v.  Simpson,  65  N.  C.  497,  it  was  held  that  a  guardian  who 

collected  in  money  which  was  well  secured  to  his  ward,  and  invested  the 

same  in  confederate  bonds,  was  guilty  of  laches,  and  was  liable  for  the 

loss.    See  Alexander  v.  Summey,  66  N.  C.  578.     An  agent  or  trustee  is 

VOL.  I.  —  41  6-41 


§  457.]  INVESTMENT.  [CHAP.    XV. 

§  457.  The  power  to  lend  on  mortgage  was  doubted  or 
denied,  until  Lord  St.  Leonard's  act,  unless  there  was  an 
express  power  in  the  instrument  of  trust,  or  a  decree  of  the 
court.  Lord  Harcourt,  Lord  Hardwicke,  and  Lord  Alvanley 
appeared  to  have  thought  that  a  trustee  or  executor  might 
invest  the  money  in  well-secured  real  estates.^  But  Lord 
Thurlow  said,  that  in  latter  times  the  court  had  considered 
it  improper  to  invest  any  part  of  a  lunatic's  estate  upon  pri- 
vate security. 2  Sir  John  Leach  refused  to  allow  an  infant's 
money  to  be  invested  in  that  manner,  and  expressed  sur- 
prise that  any  precedent  could  be  found  to  the  contrary. ^  In 
a  late  case,  the  trustees  invested  in  mortgages  at  the  request 

authorized  to  receive  payment  of  debts  in  the  currency  received  by  prudent 
business  men  for  similar  purposes.  Baird  v.  Hall,  67  N.  C.  230.  See 
Wooten  V.  Sherrard,  68  N.  C.  334. 

In  Creighton  v.  Pringle,  3  S.  C.  78,  a  trustee  was  held  guilty  of  a  breach 
of  trust  in  investing  in  confederate  bonds.  Cureton  v.  Watson,  3  S.  C. 
451.     But  see  Hinton  v.  Kennedy,  id.  459. 

If  a  trustee,  acting  in  good  faith,  receive  funds  in  bank-notes  which  are 
depreciated,  he  will  be  protected  if  such  notes  were  the  only  money  attain- 
able.    Barker  v.  McAuley,  4  Heisk.  424. 

When  a  trustee  kept  the  identical  money  received  by  him,  he  was 
allowed  to  turn  it  over  to  the  person  entitled  to  receive  it,  without  loss  to 
himself ;  but  if  he  has  not  kept  it,  he  will  be  charged  with  the  nominal 
sums  collected  by  him.     Saunders  v.  Gregory,  3  Heisk.  507. 

In  Texas,  trustees  could  not  receive  confederate  money  in  discharge  of 
obligations  to  them.  Turner  ik  Turner,  36  Tex.  41.  And  see  Scott  v. 
Atchison,  id.  76;  Kleberg  v.  Bond,  31  Tex.  611;  Woods  v.  Toombs,  36 
Tex.  85;  Turpin  v.  Sanson,  id.  142;  McGar  v.  Nixon,  id.  289;  Lacey  v. 
Clements,  id.  661. 

In  the  Supreme  Court  of  the  United  States  payment  to  an  agent  or 
trustee  in  anything  but  lawful  money  of  the  United  States,  or  bank 
notes  of  the  current  value  of  their  face,  is  held  invalid.  Ward  v.  Smith, 
7  Wall.  451;  Horn  v.  Lockhart,  17  Wall.  570;  McBurney  v.  Carson,  99 
U.  S.  567. 

1  Brown  v.  Litton,  1  P.  Wms.  141;  Lyse  v.  Kingdon,  1  Coll.  188; 
Knight  V.  Plymouth,  1  Dick.  126 ;  Pocock  v.   Reddington,  5  Ves.  8G0. 

2  Ex  parte  Calthorpe,  1  Cox,  182;  Ex  parte  Ellice,  Jac.  234. 

3  Norbury  v.  Norbury,  4  Madd.  191 ;  Widdowson  v.  Duck,  2  Mer. 
494;  Ex  parte  Fust,  1  C.  P.  Coop.  (t.  Cott.)  157,  n.  (e);  Ex  parte  Frank- 
lyn,  1  De  G.  &  Sm.  531;  Ex  parte  Johnson,  1  Moll.  128;  Ex  parte  Ridg- 
way,  1  Hog.  309. 

642 


CHAP.    XY.] 


REAL  SECURITIES. 


[§  457. 


of  the  tenant  for  life,  and  to  procure  a  higher  rate  of  interest, 
and  they  were  held  liable  for  the  loss;  but  the  case  did  not 
go  to  the  full  extent  of  deciding  that  trustees  could  not  in- 
vest on  real  securities^  for  the  reason  that  they  had  consulted 
the  interests  of  the  tenant  for  life,  at  the  expense  of  those 
of  the  remainder-man,  but  the  court  did  not  favor  mortgages.^ 
If  trustees  are  directed  to  invest  in  public  funds,  of  course 
they  cannot  invest  in  mortgages.^  Previous  to  the  acts  be- 
fore mentioned, 3  courts  did  not  sanction  mortgages;*  but 
the  practice  is  now  relaxed,  and  a  loan  upon  freeholds  of 
inheritance  to  the  extent  of  two-thirds  of  their  value  may  be 
allowed.^  But  the  rule  of  two-thirds  is  not  inflexible.  It 
may  be  improper  to  loan  even  two-thirds  of  the  present  value ; 
as,  where  the  value  depends  upon  the  chances  of  trade  or 
business,  and  where  the  property  consists  of  houses  liable  to 
deterioration.^  (a)     So  it  may  not  be  a  breach  of  trust  under 

1  Raby  v.  Ridehalgh,  7  De  G.,  :M.  &  G.  108. 

2  Pride  )•.  Fooks,  2  Beav.  430  ;  Waring  v.  Waring,  3  Ir.  Ch.  331. 
8  Ante,  §  455. 

4  Barry  v.  Marriott,  2  De  G.  &  Sm.  491 ;  Ex  parte  Franklyn,  1  De  G. 
&  Sm.  531. 

6  Stickney  v.  Sewell,  1  Myl.  &  Cr.  8 ;  Norris  v.  Wright,  14  Beav.  307 ; 
Macleod  r.  Annesly,  16  Beav.  600. 

^  Ibid.;  Phillipsoii  v.  Gatty,  7  Hare,  16;  Drosier  r.  Brereton,  15 Beav. 
221 ;  Stretton  v.  Ashmall,  3  Dr.  9  ;  3  De  G.  26  ;  L.  J.  Ch.  277 ;  Farrar  r. 
Barraclough,  2  Sm.  &  Gif.  231. 


(a)  See  Rae  v.  Meek,  14  A.C.  558 ; 
Hutton  f.  Annan,  [1898]  A.  C.  289, 
297;  Jones  v.  Julian,  25  L.  R.  Ir. 
45  ;  Worman  v.  Worman,  43  Ch.  D. 
296;  Hale  v.  Sheldrake,  60  L.  T. 
292  ;  In  re  Medland,  41  Ch.  D.  476 ; 
Re  Messingbred,  60  L.  T.  620 ;  In  re 
Turner,  [1897]  1  Ch.  536;  Stone 
V.  Clay  (Ky.),  45  S.  W.  80  ;  Cousin's 
Estate.  Ill  Cal.  441;  Randolph  v. 
East  Birmingham  Land  Co.,  104 
Ala.  355:  Stark's  Estate,  15  N.  Y.  S. 
729 ;  mulligan  v.  Pleasants,  74  ]\Id.  8; 
Hanscom  v.  INIarston,  82  ]\Iaine,  288 ; 
1  Ames  ou  Trusts  (2d  ed.),  485,  n. 


In  Re  Somerset,  [1894]  1  Ch. 
231 ;  68  L.  T.  613,  Kekewich,  J.,  re- 
ferring to  Speight  I'.  Gaunt,  9  A.  C. 
1,  and  Learoyd  v.  Whiteley,  12  id. 
727,  said  in  substance  :  When  there 
is  no  actual  breach  of  trust,  trustees 
are  simply  judged  by  the  rule  that 
they  are  to  exercise  ordinary  care 
and  prudence  in  the  discharge  of 
their  duties.  Their  liability,  as  rer 
gards  any  particular  transaction,  is 
not  increased  by  reason  of  the  fact 
that  one  of  their  number  is  skilled 
in  the  business  with  which  the 
transaction  is  concerned.  As  re- 
G43 


§  458.]  INVESTMENT.  [CHAP.   XV. 

certain  circumstances  to  loan  more  than  two-thirds.^  Trus- 
tees ought  not  to  lend  on  a  second  mortgage,  though  it  might 
not  be  a  breach  of  trust  in  all  cases  to  do  so ;  ^  and  so  they 
ought  to  have  a  power  of  sale  inserted  in  the  deed,  although 
it  might  not  be  a  breach  of  trust  to  neglect  it.^ 

§  458.  There  can  be  no  doubt  that  mortgages  on  real 
estate  are  considered  proper  investments  in  the  United 
States,  and  perhaps  they  are  the  only  investments  which 
are  not  objectionable  in  some  one  of  the  States.  In  the 
absence  of  public  funds  to  an  amount  hitherto  sufhcient  to 
absorb  the  money  to  be  invested  by  trustees,  different  rules 
have  been  established  in  the  several  States,  but  mortgages 
upon  estates  of  inheritance,  taken  with  proper  caution  as  to 
the  amount  and  the  title,  have  been  named  in  all  the  States 
as  proper  and  safe  investments ;  so  that  the  question  in  the 
United  States  is  whether  the  security  is  in  fact  what  it  is 
called,  security  upon  real  estate.  A  loan  to  a  company 
owning  coal  lands  and  a  canal,  to  a  much  greater  value 
than  its  debts,  the  interest  on  the  loan  being  a  preferred 
claim  upon  the  income,  was  held  to  be  substantially  on  real 
estate;*  but  an  investment  in  the  stock  of  a  similar  com- 
pany, which  stock  was  not  preferred,  was  held  to  be  a 
breach  of  trust.  ^    An  investment  in  railway  bonds,  secured 

1  Jones  V.  Lewis,  3  De  G.  &  Sm.  471.  This  case  was  reversed  on  ap- 
peal.    See  Lewin  on  Trusts,  263  (5th  ed.). 

2  Norris  v.  Wright,  14  Beav.  291 ;  Drosier  v.  Brereton,  15  Beav.  221; 
Robinson  v.  Robinson,  11  Beav.  371 ;  1  De  G.,  M.  &  G.  247 ;  Waring  v. 
Waring,  3  Ir.  Eq.  337  ;  Lockhart  v.  Reilly,  1  De  G.  &  J.  476 ;  Nance  v. 
Nance,  1  S.  C.  209. 

3  Farrar  v.  Barraclough,  2  Sm.  &  Gif.  231. 
<  Twaddell's  App.,  5  Penn.  St.  15. 

6  Worrall's  App.,  21  Penn.  St.  508. 

gards  investments  on  mortgages,  it  There  is  no  absolute  rule  respecting 
is  the  duty  of  the  trustees  to  decide,  the  choice  of  securities  falling  within 
and  to  exercise  their  own  judgment,  the  strict  limits  of  authorized  invest- 
as  to  the  sufficiency  of  the  securities,  ments,  or  the  amount  proper  to  be 
even  though  a  surveyor,  solicitor,  or  advanced  against  any  particular  se- 
other  trusted  agent,  has  expressed  curity.  See  also  In  re  Westerfield, 
to  them  his  opinion  on  the  subject.  53  N.  Y.  S.  25. 
644 


CHAP.   XV.]  REAL   SECURITIES.  [§  458. 

by  a  mortgage  of  the  road-bed,  franchise,  and  other  property, 
is  not  real  security,  though  real  estate  is  covered  by  the 
mortgage ;  for  the  method  of  enforcing  such  a  bond  is  very 
different  from  the  ordinary  manner  of  foreclosing  a  mort- 
gage, and  whether  such  a  bond  can  be  enforced  at  all  depends 
u})on  the  concurrent  will  of  so  many  bondholders,  that,  at 
best,  it  is  only  nominal  real  estate.^  London  Dock  stock 
and  sewer  bonds  are  not  real  security. ^  It  is  not  a  breach 
of  trust  to  leave  funds  in  turnijike  bonds,  secured  by  a  mort- 
gage of  the  tolls  and  real  estate  of  the  company,  as  they  had 
been  invested  by  the  testator. ^  Under  the  right  of  the  trus- 
tees to  invest  trust  funds  in  real  securities,  they  cannot 
convert  the  funds  into  real  estate  by  taking  the  legal  title 
absolutely  to  themselves  in  trust;  and  if  they  do  so,  the 
cestui  que  trust  may  elect  to  take  the  land,  or  the  trust-money 
and  interest;*  though  a  direction  to  invest  in  productive 
real  estate  was  held  to  justify  the  purchase  of  dwelling- 
houses,  or  the  purchase  of  a  right  of  dower  in  order  to  render 
the  property  more  productive.^  If  a  testator  has  already 
invested  in  mortgages,  a  trustee  may  make  such  further  ad- 
vances of  money  as  are  necessary  to  secure  the  first  invest- 
ment.    No   general   rule   can  be  stated;  but  the  trustee  in 

1  Mant  V.  Leith,  15  Beav.  524 ;  Allen  v.  Gaillard,  3  S.  C.  279.  It  is 
not  sufficient  for  a  trustee  to  say,  in  defence  of  an  investment,  that  it  is  on 
real  security.  There  are  other  things  to  be  considered,  the  nature  of  the 
property  and  other  matters.  The  property,  though  sufficient,  may  be  in- 
volved in  litigation.     Per  Master  of  Kolls  in  Mant  v.  Leith. 

2  Robinson  v.  Robinson,  11  Beav.  371. 

3  Robinson  v.  Robinson,  21  L.  J.  Ch.  Ill ;  1  De  G.,  M.  &  G.  247;  Mil- 
ler ('.  Proctor,  20  Ohio  St.  444. 

*  Mathews  v.  Hey  ward,  2  S.  C  239 ;  Ouseley  v.  Anstruther,  10  Beav. 
456;  Royer's  App.,  11  Pa.  St.  36;  Kaufman  v.  Crawford,  9  Watts  &  S. 
131 ;  Bonsall's  App.,  1  Rawle,  273  ;  Bellington's  App  ,  3  Rawle,  55 ;  Ring- 
gold V.  Ringgold,  1  H.  &  G.  11 ;  Morton  v.  Adams,  1  Strob.  Eq.  72  ;  Ileth 
r.  Richmond,  &c.  Co.,  4  Grat.  482;  Eckford  r.  De  Kay,  8  Paige,  89;  Win- 
chelsea  v.  Nordcliffe,  1  Vern.  134.  And  if  a  mortgage  is  given  back,  the 
mortgagor,  if  he  have  notice  of  the  misapplication  of  the  trust  fund,  can- 
not enforce  his  mortgage  until  the  fund  has  first  been  replaced.  Matheus 
V.  Heyward,  2  S.  C.  239. 

^  Parsons  v.  AVinslow,  16  Mass.  308. 

645 


§  458.]  INVESTMENT.  [CHAP.   XV. 

such  case  must  make  a  careful  investigation  and  exercise  a 
sound  discretion,  or  his  advances  will  not  be  allowed  in  case 
of  a  loss.^  And  so  a  guardian,  in  case  of  a  grave  emergency, 
may  buy  in  land  for  the  minor  to  save  a  certain  loss;^  so 
an  administrator  may  buy  in  the  land  of  a  debtor  to  his 
estate  to  save  the  debt.^  Such  an  investment  is  a  mere 
temporary  expedient,  and  is  to  be  treated  as  personal  estate.^ 
A  loan  of  trust  funds  on  real  mortgage  does  not  change  the 
character  of  the  funds,  nor  constitute  an  investment  in  real 
estate.^  The  court  may  order  an  investment  of  accumula- 
tions, or  of  the  principal  fund  temporarily  in  real  estate,  with 
a  declaration  that  it  shall  continue  personalty;^  and  so  a 
court  may  order  an  investment  in  real  estate  generally, 
where  no  other  way  is  pointed  out  in  the  trust  instrument.^ 
Where  a  trustee  or  guardian  is  obliged  to  take  land  subject 
to  a  mortgage,  the  trustee  becomes  personally  liable  to  pay 
off  the  mortgage,  to  protect  the  interest  of  the  cestui  que 
trust.  In  such  case,  the  guardian  or  trustee  may  have  the 
possession  of  the  estate  or  the  management  of  the  trust  fund, 
in  order  to  secure  himself  for  the  advancement  so  made.^ 
But  there  must  be  an  urgent  necessity  to  justify  such  a  pro- 
ceeding. If  a  trustee  is  authorized  to  invest  in  real  estate, 
stock,  or  securities,  he  cannot  mortgage  the  trust  fund  in 
order  to  raise  money  to  invest  in  such  manner,  nor  invest 
in  machinery  for  the  use  of  the  cestui  que  trust.^  In  all 
cases  the  trustee  ought  to  exercise  high  diligence  in  ascer- 
taining the  valuation,  situation,  condition,  and  productive- 
ness of  the  real  estate  or  other  property  upon  which  it  is 
proposed  to  make  a  loan  of  the  trust-money ;  for  he  will  bo 

1  Collinson  v.  Lister,  20  Beav.  356. 

2  Bonsall's  App.,  1  Rawle,  273;  Royer's  App.,  11  Penn.  St.  36. 

3  Bellington's  App.,  3  Rawle,  55. 

4  Oeslager  v.  Fisher,  2  Penn.  St.  467. 
6  Milhous  V.  Dunham,  78  Ala.  48. 

6  Webb  V.  Shaftesbury,  6  Madd.  100. 
'  Ex  parte  Calmes,  1  Hill,  Eq.  112. 

8  Woodward's  App.,  38  Penn.  St.  322. 

9  Rider  v.  Sisson,  7  R.  I.  341. 
646 


CHAP.    XV.]  REAL   SECURITIES.  [§  459. 

liable  for  the  loss  if  he  is  guilty  of  any  negligence  in  this 
respect.^ 

§  459.  In  a  few  States,  there  are  statutes  authorizing  trus- 
tees to  invest  in  a  particular  manner,  and  excusing  them 
from  responsibility  if  their  investments  are  made  in  good 
faith  in  the  prescribed  securities,  (a)  Thus  in  Pennsylvania, ^ 
an  executor,  guardian,  or  trustee  may  apply  to  the  Orphans' 
Court,  and  the  court  may  direct  an  investment  in  the  stocks 
or  public  debt  of  the  United  States,  of  the  State,  or  of  the 
city  of  Philadelphia,  or  in  real  securities,  or  in  the  stock  of 
the  incorporated  districts  of  Philadelphia  County,  of  Pitts- 
burg and  Alleghany,  and  the  water-works  of  Kensington, 
Philadelphia  County.  But  it  has  been  held  that  trustees 
are  not  confined  to  these  funds ;  that  the  acts  are  for  their 
benefit;  that  they  can  elect  other  kinds  of  investment,  but 
will  be  responsible  for  losses.^  In  New  York,  there  does  not 
appear  to  be  any  legislation  on  the  subject ;  but  trustees  are 
bound  by  the  rules  of  the  court  to  invest  in  real  securities,  or 
government  bonds,  or  in  the  State  loan,  or  in  loans  of  the 
New  York  Life  Insurance  and  Trust  Company.'*  In  New 
Jersey,  a  statute  authorized  an  investment  to  be  made  upon 
an  application  to  the  court,  but  does  not  establish  any  partic- 
ular funds,  (h)  In  Gray  v.  Fox,  the  court  lay  down  the 
rule  that  investments  must  be  made  in  government  stocks, 

1  Budge  r.  Gummon,  L.  R.  7  Ch.  721 ;  Smethurst  v.  Hastings,  30  Ch. 
D.  490  ;  Olive  i-.  Westerman,  34  Ch.  D.  70  ;  Whiteley  v.  Learoyd,  33  Ch. 
D.  347. 

2  Acts  1832,  1838,  1850,  1852. 

8  Barton's  Est,  1  Pars.  Eq.  24;  Worrall's  App.,  9  Barr,  108;  Twad- 
dell's  App.,  5  Penn.  St.  15. 

*  Ackerman  v.  Emott,  4  Barb.  626 ;  and  see  Smith  v.  Smith,  4  Johns. 
Ch.  281,  445 ;  King  v.  Talbott,  40  N.  Y .  86,  97.  This  case  contains  a  full 
discussion  of  the  law  in  New  York.     Ilun  v.  Gary,  82  N.  Y.  65. 

(rt)  See  these  statutes  collected  (b)  See  Craven's  Case,  43  N.  J. 

in  Loring's  Trustee  Handbook,  100;  Eq.  416.     In    North    Carolina,  see 

1  Ames  on  Trusts  (2(1  ed),  486,  n. ;  Watson  v.  Holden,  115  N.  C.  36. 
and  9  L.  R.  A.  279,  280,  n. 

647 


§  459.]  INYESTMENT.  [CHAP.    XV. 

or  in  real  security.^  In  Maryland,  there  is  neither  statute 
nor  rule  of  court  to  guide  the  trustees.  The  courts  do 
not  approve  of  changes  in  investments,  unless  express  power 
is  given  in  the  instrument  of  trust ;  as  where  a  testator  gave 
certain  stocks  in  trust  without  direction  to  vary  the  security, 
and  the  trustee  disposed  of  the  stocks  and  invested  the  money 
in  other  securities,  he  was  ordered  to  replace  the  entire 
sum  in  the  same  stocks,  although  the  number  of  shares  were 
increased  by  the  change. ^  In  Maine,  New  Hampshire, 
Vermont,  Michigan,  and  Missouri,  the  courts  may,  upon 
application,  direct  trustees  as  to  the  manner  of  investment, 
but  no  special  investments  are  pointed  out.^  If  trustees 
invest  according  to  the  direction  of  the  courts,  they  are 
not  responsible  for  any  loss.  In  Georgia,  if  trustees  invest 
in  the  stocks,  bonds,  or  other  securities,  issued  by  their  own 
State,  or  in  such  other  securities  as  shall  be  ordered  by  the 
court,  they  will  be  exempt  from  loss.*  In  Mississippi,  an 
investment  in  bank  stocks  is  allowed.^  In  States  where 
there  are  no  statutes  nor  rules  of  court  regulating  invest- 
ments, trustees  are  bound  to  act  in  good  faith  and  with  a 
sound  discretion  in  investing  trust-money;  and  if  they  so  act 
they  are  not  responsible  for  any  loss  that  may  happen,  ^  but 
to  invest  in  mere  personal  securities  is  not  a  sound  discre- 

1  Gray  v.  Fox,  Saxton,  259;  Lathrop  v.  Smalley,  23  N.  J.  Eq.  192; 
Corliss  V.  Corliss,  id. 

2  Murray  r.  Feinour,  2  Md.  Ch.  418;  Evans  v.  Iglehart,  6  Gill  &  J.  192; 
Gray  v.  Lynch,  8  Gill,  405;  Hammond  v.  Hammond,  2  Bland,  30G. 

8  Knowlton  v.  Brady,  17  N.  H.  458.  It  is  impossible  to  cite  the  statutes 
of  all  the  States.  Practising  attorneys  will  of  course  know  the  legislation 
of  their  own  States. 

4  Ga.  Rev.  Code,  §  320;  Brown  v.  Wright,  39  Ga.  96. 

6  Smyth  r.  Burns,  25  Miss.  422.  These  rules  and  regulations  are 
established  for  the  protection  of  trustees :  so  long  as  they  in  good  faith 
confine  their  investments  to  those  allowed  by  law,  they  are  protected 
from  loss.  Stanley's  App.,  8  Penn.  St.  432;  Twaddell's  A  pp.,  9  id.  108; 
Seidler's  Est.,  5  Phila.  85;  Barton's  Est.,  1  Pars.  Eq.  24;  Johnson's  App,, 
43  Penn.  St.  431;  Morris  v.  Wallace, 3  id.  319;  McCahan's  App., 7  id.  50; 
Hemphill's  App.,  18  id.  303  ;  Rush's  Est.,  12  id.  378;  Nyce's  Est.,  5  Watts 
&  S.  254. 

6  Clark  V.  Garfield,  8  Allen,  427. 
648 


§  460.]  INVESTMENT.  [CHAP.    XV 

tion  anywhere.^  Nor  is  it  a  sound  discretion  for  trustees 
to  subscribe  trust  funds  to  new  enterprises,  as  for  the  stock 
of  new  manufacturing,  insurance,  or  railroad  corporations, 
when  tlic  undertaking  must,  in  the  nature  of  things,  be  ex- 
perimental ;  and  it  will  not  excuse  the  trustee  that  he  sub- 
scribes his  own  money  to  such  enterprises,  as  it  is  j)crmitted 
to  him  to  speculate  with  his  own  money  if  he  sees  fit.^ 

§  460.  The  instrument  of  trust  frequently  contains  direc- 
tions respecting  the  investment  of  the  trust  funds.  If  the 
directions  are  so  general  that  they  do  not  point  to  any  partic- 
ular class  or  classes  of  investments,  the  trustees  must  invest 
in  those  securities  that  are  sanctioned  by  the  court;  as,  if 
the  trust  is  to  invest  in  "good  and  sufficient  security,"  the 
court  will  sanction  no  security  not  allowed  by  its  rules  and 
orders.^  (a)  If  the  trustee  is  to  invest  at  his  "discretion," 
he  cannot  invest  in  personal  securities.^  (6)     The  powers  and 

1  A  nte,  §  453. 

2  Kimball  r.  Reading,  31  N.  H.  352 ;  Thmsen's  App.,  43  Penn.  St.  471. 
8  Booth  V.  Booth,  1  Beav.  125;  Trafford  ;-.  Boehm,  3  Atk.  410;  De 

Manneville  c.  Crompton,  1  V.  &  B.  259;  Wilkes  v.  Steward,  Coop.  6; 
Ryder  v.  Bickerton,  3  Swanst.  80,  n.;  Nance  o.  Nance,  1  S.  C.  209; 
VVomack  i.  Austin,  id.  421. 

*  Ibid.;  Pocock  v.  Reddington,  5  Ves.  794;  Wormley  v.  Wormley, 
8  Wheat.  421 ;  1  Brock.  339 ;  Langstou  v.  OUivant,  Coop.  33. 

(a)  See  Bartol's  Estate,  182  Penn.  ments  has  the  burden  of  proof  to 

St.  407;    Seldner  v.   McCreery,  75  show  that  he  acted,  not  only  honestly, 

Md.  287 ;  Clark  v.  Clark,  50  N.  Y.  S.  but  also  in  a  reasonable  way.     Re 

1041.  Stuart,  46  W.  R.  41  ;  lie  Barker, 

(6)  A  power  given  by  will  to  id.  296. 
trustees  of  the  residuary  estate  to  A  trustee  who  is  given  discre- 
invest  "in  such  stocks,  funds,  and  tion  as  to  the  management  and  in- 
securities as  they  shall  think  fit,"  vestment  of  the  trust  estate,  or  to 
means  "  shall  honestly  think  fit."  continue  a  testator's  investments  or 
In  re  Smith,  [1896]  1  Ch.  71;  Mur-  business,  is  still  bound  to  observe 
phy  V.  Doyle,  29  L.  R.  Jr.  333.  the  established  rules  as  to  the  in- 

Under  the  English  Judicial  Trus-  vestment  of  trust  funds.     Mattocks 

tees  Act  of  1896(59  &  60  Vict.  c.  v.  Moulton,  84  IMaino,  545 ;  Caspari 

35),  §  3,  a  trustee  who  seeks  relief  v.  Cutciieon,   110  Mich.   86;   In  re 

from   liability   for   loss   on   invest-  Tucker,  [1891]  1  Ch.  724  ;/;» re  Earl, 

649 


§  4G0.]  INVESTMENT.  [CHAP.   XV. 

directions  given  in  the  instrument  must  be  strictly  followed;^ 
thus  a  power  to  invest  in  bank  stocks  or  lots  of  land  will  not 
authorize  an  investment  in  the  loan  of  the  United  States. ^ 
A  power  to  loan  on  real  securities  does  not  justify  a  loan 
upon  railroad  bonds  secured  by  mortgage  of  the  road;^  nor 
does  a  power  to  loan  upon  mortgage  authorize  an  investment 
in  railroad  mortgage  bonds.^  A  power  to  invest  in  "good 
and  sufficient  securities  in  Virginia  and  Maryland,"  author- 
izes a  loan  upon  town  securities.^  A  direction  to  invest  "in 
any  public  stocks  or  securities  bearing  an  interest,"  embraces 
a  coal  and  navigation  company,  that  being  within  the  popular 
meaning  of  the  testator.^  If  there  is  a  direction  to  invest 
trust  funds  in  real  securities  in  a  foreign  jurisdiction,  the 
court  will  allow  the  investment;'^  but  if  no  such  power  is 
given,  such  investment  will  not  be  allowed.^  Where  trus- 
tees were  authorized  in  their  discretion  to  invest  in  a  dwell- 
ing-house for  the  daughter  of  the  testator,  and  she  was 
married  and  went  to  reside  in  a  foreign  jurisdiction,  it  was 
held,  that  they  might  invest  in  a  dwelling-house  at  the  place 
of  her  residence,  although  it  was  in  a  foreign  jurisdiction.^ 

1  Wood  V.  Wood,  5  Paige,  596 ;  Burrill  v.  Sheil,  2  Barb.  457;  Woraack 
V.  Austin,  1  S.  C.  421;  Sanders  v.  Rogers,  id.  452;  Ihmsen's  App.,  43 
Penn.  St.  471. 

2  Banister  v.  McKenzie,  6  Munf.  447. 

8  ]\Iortimore  v.  Mortimore,  4  De  G.  &  J.  472 ;  IMant  v.  Leith,  15  Beav. 
525 ;  Harris  v.  Harris,  29  Beav.  107 ;  King  v.  Talbott,  50  Barb.  453  ;  40 
N.  Y.  86 ;  Allen  v.  Gaillard,  1  S.  C.  279  ;  Bromley  v.  Kelly,  39  L.  J.  Ch. 
274. 

*  Ibid. 

5  McCall  V.  Peachy,  3  Munf.  288.  But  if  such  securities  are  greatly 
depreciated,  it  would  be  a  breach  of  trust  to  invest  in  them.  Trustees, 
&c.  V.  Clay,  2  B.  Mon.  386. 

6  Rush's  Est.,  12  Penn.  St.  375.  See  Hemphill's  App.,  18  Penn.  St. 
303. 

■^  Burrill  v.  Sheil,  2  Barb.  457. 
8  Rush's  App.,  12  Penn.  St.  375. 
®  Amory  r.  Green,  13  Allen,  413. 

39  W.  R.  107;  In  re  Kavanagh,  27    61  Conn.  87;  Jones  v.  Jones,  86  Va. 
L.  R.  Ir.  495 ;  Stewart  v.  Parnell,     845. 
147  Penn.  St.  523 ;  Clark  v.  Beers, 
650 


CHAP.    XV.]  INVESTMENT.  [§  460. 

Cut  where  they  were  authorized  to  invest  in  bonds,  deben- 
tures, or  other  securities,  or  the  stocks  or  funds  of  any 
colony  or  foreign  country,  they  were  not  allowed  to  invest  in 
railway  bonds,  though  guaranteed  by  a  foreign  government.^ 
As  before  stated,  all  these  powers  are  strictly  construed;  as, 
if  the  trustees  are  authorized  to  loan  X3000  on  personal 
securities,  and  they  lend  X5000,  it  is  a  breach  of  trust  ;2  and 
if  the  power  is  to  loan  on  bond,  they  cannot  loan  on  a  prom- 
issory note.^  If  the  trustees  may  loan  the  trust  fund  to  the 
husband,  with  the  consent  of  the  wife,  they  cannot  allow  the 
loan  to  continue  if  the  husband  becomes  bankrupt;  and  they 
will  be  guilty  of  a  breach  of  trust,  if  they  do  not  use  due 
diligence  in  calling  in  the  loan,  or  in  collecting  such  divi- 
dends as  may  be  coming.  An  entire  change  of  circumstances 
may  ehange  their  duty,  although  the  wife  may  still  desire 
that  her  husband  should  have  the  use  of  the  money.*  Gen- 
erally, where  the  trustees  are  required  to  invest  the  fund  in 
a  particular  manner,  with  the  approbation  of  any  person,  such 
requirement  becomes  imperative  upon  the  request  of  such 
person.^  (a)  So,  if  any  formalities  are  prescribed  as  to  the 
investment,  they  must  be  strictly  complied  with ;  as,  where 
the  written  consent  of  a  wife  is  a  prerequisite  to  a  loan  to 
her  husband,  a  verl)al  consent  will  not  relieve  the  trustees 
from  the  consequences  of  a  breach  of  trust,  if  they  act  on 
such  verbal  consent.*^     A  subsequent  consent  is  not  sufficient 

^  In  re  Langdale's  Settlement,  Trust,  L.  R.  10  Eq.  39. 

2  Payne  v.  Collier,  1  Ves.  Jr.  170. 

8  Greenwood  v.  Wakeford,  1  Beav.  576. 

*  Wiles  V.  Gresham,  2  Drew.  258  ;  24  L.  J.  Ch.  264 ;  Langston  v.  Olli- 
vant,  Coop.  33  ;  and  see  Boss  v.  Goodsall,  1  N.  C.  C.  617  ;  Burt  v.  Ingram, 
Lewin  ou  Trusts,  339  (4th  ed.). 

6  Cadogan  v.  Essex,  2  Dr.  227;  Mclntire  v.  Zanesville,  17  Ohio  St. 
352. 

6  Cocker  v.  Quayle,  1  R.  &  M.  535;  Hopkins  v.  Myall,  2  R.  &  M.  86; 
Kellaway  v.  Johnson,  5  Beav.  319. 

(a)  A  discretionary  power  to  ap-  cessors,  when  a  contrary  intention 
point  to  invest,  confided  to  named  does  not  appear.  Lowe  v.  Couven- 
trustees,  is  a  personal  power,  and  tion,  83  Md.  409 ;  Blakely,  Peti- 
does  not  pass  to  the  trustees'  sue-    tioner,  19  R.  I.  324. 

651 


§  461.]  INVESTMENT.  [CHAP.   XV, 

where  a  previous  consent  was  contemplated ;  ^  nor  is  it  enough 
for  a  wife  to  join  the  husband  in  a  petition  for  an  order  that 
a  loan  be  made  to  him.^  If  the  trustees  go  beyond  the  pre- 
scribed limits,  neither  good  faith  nor  care  nor  diligence,  if 
they  can  accompany  a  departure  from  the  direction  of  the 
instrument  of  trust,  will  protect  them  if  a  loss  occurs.^  If 
it  is  impossible  for  them  to  invest  according  to  the  directions, 
they  must  invest  in  the  securities  prescribed  by  the  law  or 
by  the  court,  or  in  the  safest  class  of  securities.^ 

§  461.  A  direction  to  invest  in  good  freehold  security 
must  be  strictly  complied  with ;  °  an  authority  to  invest  in 
ground  rents  authorizes  an  investment  in  redeemable  ground 
rents,  that  being  the  kind  of  ground  rent  in  the  place  where 
the  investment  is  to  be  made ;  ^  a  power  to  invest  in  good 
private  security  does  not  authorize  the  trustees  to  use  the 
funds  themselves.''  Where  stock  is  settled  on  a  husband  and 
wife  for  life,  with  remainder  to  the  children,  with  a  power 
to  vary  the  securities  for  greater  interest,  the  trustees  cannot 
purchase  an  annuity  for  one  of  the  tenants  for  life.^  If, 
however,  the  existing  securities  are  unsafe,  and  it  is  proper 
to  call  in  the  money  and  reinvest  it,  trustees  may  make  a 
temporary  investment  in  safe  funds  until  an  investment  can 
be  advantageously  made  in  the  securities  directed  by  the  tes- 
tator.^    If   the  direction  is  to  invest  in  land  or  any  other 


1  Bateraan  v.  Davis,  3  Madd.  98;  Adams  v.  Broke,  1  N.  C.  C.  627. 

2  JSTorris  v.  Wright,  14  Beav.  291 ;  Fitzgerald  v.  Pringle,  2  Moll.  534 ; 
Dunne  v.  Dunne,  1  S.  C.  350. 

3  Ackerman  v.  Emott,  4  Barb.  626;  Spring's  App.,  71  Penn.  St.  11; 
Ringgold  V.  Ringgold,  1  H.  &  G.  25 ;  Cloud  v.  Bond,  3  Myl.  &  Cr.  490. 

4  Mclntire  v.  Zanesville,  17  Ohio,  352. 

6  Wyatt  V.  AVallace,  8  Jur.  117;  1  Coop.  155,  n. 
6  Ex  parte  HufP,  2  Barr,  227. 

'  Westover  v.  Chapman,  1  Col.  C.  C.  177;  Forbes  v.  Ross,  2  Bro.  Ch. 
430;  2  Cox,  113;  arite,  §453. 

8  Fitzgerald  v.  Pringle,  2  Moll.  534. 

9  Sowerby  v.  Clayton,  3  Hare,  430;  8  Jur.  597;  Mathews  v.  Brice,  6 
Beav.  329;  Ex  parte  Chaplin,  3  Y.  &  C.  397 ;  Knott  v.  Cottee,  6  Beav.  77; 
Brownley  v.  Kelly,  39  L.  J.  Ch.  272. 

652 


CHAP.    XV.]  INVESTMENT.  [§  462. 

security,  it  will  be  implied  that  the  settlor  intended  the  in- 
vestment to  be  made  in  land  if  it  could  be  done  advanta- 
geously, and  the  alternative  part  of  the  direction  is  to  be  fol- 
lowed only  in  case  an  investment  cannot  be  made  in  land; 
and  this  construction  will  be  followed  unless  there  is  some 
other  controlling  consideration  in  the  instrument.^  And  if 
trustees  are  authorized  to  lend  on  mortgage  to  three  persons, 
they  cannot  lend  to  two  of  them,  although  they  get  the  entire 
interest  in  the  estate;  nor  can  they  lend  to  the  three  without 
the  mortgage  at  the  time,  although  they  get  the  security  in 
two  years  after.  It  is  no  excuse  to  say  that  the  delay  did 
not  occasion  the  loss.  The  conclusive  answer  is,  that  they 
committed  a  breach  of  trust  in  not  obeying  the  power,  and 
they  must  make  good  the  loss.^  And  so  trustees  cannot  let 
money  on  a  mortgage  to  one  of  themselves.^  Under  a  power 
to  loan  on  mortgage  they  may  continue  existing  mortgages, 
if  safe.'* 

§  462.  A  trustee  must  invest  the  trust  funds  in  his  hands, 
in  the  manner  directed,  within  a  reasonable  time,  although 
no  direction  is  given  in  the  deed  or  will  as  to  the  time  or 
manner  of  investment.  If  he  neglects  for  an  unreasonable 
time  to  make  the  investment,  he  may  be  charged  with  in- 
terest; and  if  any  loss  or  damage  occurs  to  the  cestui  que 
trust  from  the  delay,  the  trustee  must  make  it  up.^  (a)     What 

^  Earlom  v.  Saunders,  Amb.  340 ;  Cookson  v.  Reay,  5  Beav.  32 ;  Cow- 
ley V.  HartstoDge,  1  Dow,  361 ;  Hereford  i\  Kavenhill,  5  Beav.  51 ;  Fowler 
V.  Reynal,  3  IMac.  &  G.  500;  2  De  G.  &  Sm.  749. 

2  Earlom  v.  Saunders,  Amb.  340;  Cookson  v.  Reay,  5  Beav.  32 ;  Cow- 
ley r.  Hartstonge,  1  Dow,  361 ;  Hereford  r.  Ravenbill,  5  Beav.  51 ;  Fowler 
V.  Reynal,  3  Mac.  &  G.  .500 ;  2  De  G.  &  Sm.  749. 

8  Stickney  v.  Sewell,  1  Myl.  &  Cr.  8;  v.  Walker,  5  Russ.  7  ; 

Fletcher  v.  Green,  33  Beav.  426;  Francis  v.  Francis,  5  De  G.,  M.  &  G. 
108;  Crosskill  v.  Bower,  32  Beav.  86;  De  Jarnette  v.  De  Jarnette,  41  Ala. 
708. 

*  Angerstein  r.  Martin,  T.  &  R.  239 ;  Ames  r.  Parkinson,  7  Beav.  379. 

^  Lyse  V.  Kingdom,  1  Coll.  184;  Bates  r.  Scales,  12  Yes.  402:  Ryder 
V.  Bickerton,  3  Swanst.  80 ;   Trafford  v.  Boehm,  3  Atk.  440 ;  Lomax  r. 

(a)  See  Merkel's  Estate,  131  tate,  135  id.  585;  Whitecar's  Es- 
Penn.    St.    584;    Stambaugh's   Es-    tate,  147  id.  368;    Noble's  Estate, 

653 


§  462.]  INVESTMENT.  [cHAP.   XV. 

is  a  reasonable  time  depends  upon  circumstances.  When  the 
trustees  were  directed  to  invest  in  the  purchase  of  land  with 
all  convenient  speed,  a  year  was  held  to  be  a  reasonable 
time.  I  But  where  the  trustees  arc  directed  to  invest  \nfree- 
hold  securities,  they  will  not  be  charged  with  interest  until  it 
has  been  shown  that  they  could  have  invested  according  to 
the  direction ;  for  it  is  not  always  practicable  to  procure  such 
securities. 2  So  a  year  from  the  testator's  death  was  consid- 
ered a  reasonable  time  within  which  to  make  an  investment 
in  United  States  stock. ^  On  the  other  hand,  the  Supreme 
Court  of  the  United  States  allowed  three  months  as  a  rea- 
sonable time  within  which  to  invest  capital  sums  of  a  trust 
fund  paid  in  to  a  banker,  and  charged  the  trustee  for  the 
sum  lost  by  the  failure  of  the  banker  after  that  time.^  In 
other  cases,  six  months  have  been  allowed  as  a  reasonable 
time  within  which  to  invest  trust  funds ;  and  trustees  have 
been  charged  with  interest  when  they  kept  the  money  unin- 
vested for  a  longer  time.^  But  where  the  trustees  make  no 
effort  to  invest  the  money,  they  may  be  charged  with  interest 
from  a  period  earlier  than  six  months.^     Where  a  trustee  or 

Pendleton,  3  Call,  538 ;  Garniss  v.  Gardner,  1  Edw.  Ch.  128 ;  Schieffelin 
V.  Stewart,  1  Johns.  Ch.  620;  Chase  v.  Lockerman,  11  G.  &  J.  185;  Arm- 
strong!;. Miller,  6  Ham.  118;  Handly  v.  Snodgrass,  9  Leigh,  484  ;  Aston's 
Est.,  5  Whart.  228;  In  re  Thorp,  Davies,  290;  Shipp  v.  Hettrick,  63  N.  C. 
329 ;  Owen  v.  Peebles,  42  Ala.  338. 

1  Parry  v.  Warrington,  6  Madd.  155 ;  Johnson  v.  Newton,  11  Hare, 
160. 

2  Wyatt  r.  Wallis,  1  Coop.  154,  n. ;  8  Jur.  117. 

3  Cogswell  V.  Cogswell,  2  Edw.  Ch.  231.  This  was  in  analogy  to  the 
payment  of  legacies,  which  may  be  done  in  one  year;  a  trustee  with  ready 
money  ought  to  invest  with  more  promptness. 

*  Barney  v.  Saunders,  16  How.  543. 

5  Dunscomb  v.  Dunscomb,  1  Johns.  Ch.  508;  Manning  v.  Manning, 
id.  527;  Merrick's  Est.,  2  Ash.  485;  Worrall's  App.,  23  Penn.  St.  44  ; 
Armstrong  v.  Walkup,  12  Grat.  608;  Hooper  v.  Savage,  1  Munf.  119; 
Frey  v.  Frey,  2  C.  E.  Green,  72. 

6  Ringgold  V.   Ringgold,  1   H.  &  G.  11;   Witmer's  App.,  87   Penn. 

43  Pitts.  L.  J.  365;  Hetfield  v.  De-    Estate,  18  Oregon,  168;  1  Ames  on 
baud,  54  N.  J.  Eq.  371;  HoUaday's    Trusts  (2d  ed.),  489,  n. 
654 


CHAP.   XV.]  INVESTMENT.  [§  462. 

executor  is  directed  to  invest  a  legacy  immediatehj  in  stocky 
and  he  retains  the  sum  for  the  period  of  one  year  or  more,  or 
for  an  unreasonable  time,  and  the  price  of  the  stock  rises,  he 
will  be  ordered  to  purchase  as  much  stock  as  could  have 
been  purchased  at  the  time  the  fund  ought  to  have  been 
invested.'  Where  trustees  were  directed  to  invest  in  the 
funds,  and  they  paid  the  money  into  a  banker's  with  direc- 
tions to  invest  in  bank  annuities,  which  the  banker  neg- 
lected to  do,  and  the  trustees  made  no  inquiry  for  five 
months,  they  were  held,  after  the  failure  of  the  banker,  for 
the  money  or  the  stock  at  the  option  of  the  cestui  que  trust.^ 
Trustees  and  guardians  are  held  to  a  stricter  rule  in  relation 
to  investments  than  executors  acting  as  trustees,  for  trustees 
and  guardians  generally  take  an  estate  ready  to  be  invested ; 
and  trustees  will  be  held  to  a  stricter  rule  in  relation  to 
capital  sums,  than  in  relation  to  current  income  from  interest, 
dividends,  rents,  and  other  smaller  sums ;  thus  in  Barney  v. 
Saunders,^  before  cited,  three  months  were  held  a  reason- 
able time  within  which  trustees  ought  to  have  invested 
capital  sums  paid  into  the  banker's,  and  they  were  held 
responsible  for  the  loss  of  capital  after  that  time  by  the  fail- 
ure of  the  banker,  while  they  were  not  held  liable  to  replace 
small  sums  paid  into  the  same  banker's  from  the  rents,  in- 
terest, and  dividends  upon  the  same  estate.  An  executor 
will  not  in  general  be  charged  with  interest  for  not  investing 
before  the  expiration  of  a  year  from  the  testator's  death.* 

St.  120.  Two  months  not  an  unreasonable  allowance  of  time  for 
reinvestment. 

1  Byrchall  v.  Bradford,  6  ^ladd.  2-35 ;  Pride  r.  Fooks,  2  Beav.  430 ; 
Watts  V.  Girdlestone,  6  Beav.  188;  Clough  v.  Bond,  3  IMyl.  &  Cr.  406; 
Robinson  v.  Robinson,  1  De  G.,  M.&G.  250;  Phillipson  v.  Gatty,7  Hare, 
516. 

2  Challen  v.  Shippam,  4  Hare,  555. 

8  Barney  v.  Saunders,  IG  How.  545;  Lomax  r.  Pendleton.  3  Call  .^138. 

*  But  where  it  is  the  duty  of  executors  within  a  reasonable  time  to 
separate  a  legacy  from  the  estate,  and  to  invest  it  to  accumulate,  or  for 
the  support  and  maintenance  of  the  legatee,  neglect  to  do  so  makes  them 
chargeable  with  legal  interest ;  and  they  will  not  be  allowed  to  limit  their 
liability  by  showing  the  rate  of  interest  received  upon  the  general  fund, 

655 


§  463.]  INTESTMENT.  [CHAP.   XV. 

A  year  is  a  reasonable  time  within  which  an  executor  may 
call  in  the  testator's  estate  and  pay  off  his  liabilities;  and 
it  is  necessary,  during  that  time,  that  the  executor  should 
keep  the  money  on  hand.  In  most  States  an  executor  is 
allowed  that  time  by  statute;  and  he  is  exempt  from  suit  by 
creditors  during  that  year.  After  that  time,  if  an  executor 
keeps  money  in  his  hands  without  any  apparent  reason,  ex- 
cept for  the  purpose  of  using  it,  it  becomes  a  breach  of  trust 
or  negligence ;  and  the  court  may  charge  him  with  interest, 
or  with  the  principal  sum  if  lost.^  So  an  executor  will  be 
charged  with  interest  during  the  year,  if  he  receives  interest 
by  loaning  or  using  the  money.  ^ 

§  463.  Trustees  ought  not  to  mix  trust-money  with  other 
moneys,  and  take  a  joint  mortgage  for  the  whole,  for  this 
would  be  to  complicate  the  trust  with  the  rights  of  strangers ; 
nor  should  a  mortgage  in  such  case  be  taken  in  the  name  of  a 
common  trustee,  for  that  would  be  a  delegation  of  the  rights 
of  the  trustee;^  but  where  the  trust  fund  was  very  small,  it 
was  held  to  be  proper  for  a  trustee  to  put  some  of  his  own 
money  with  it  in  order  to  loan  it  to  the  best  advantage  on  a 
mortgage.*  Trustees  must  personally  see  to  it,  that  the 
security  is  forthcoming  upon  parting  with  the  money  ;^  as, 
where  they  allowed  their  solicitors  to  receive  the  money  upon 

nor  be  excused  by  the  fact  that  it  was  for  the  interest  of  the  residuary 
legatee  to  have  the  funds  kept  together.  Fowler  v.  Colt,  25  N.  J.  Eq. 
202. 

1  Forbes  v.  Ross,  2  Cox.  115;  Flanagan  v.  Nolan,  1  Moll.  85;  Moyle 
V.  Moyle,  2  R.  &  M.  710;  Johnson  v.  Newton,  11  Hare,  160;  Hughes  v. 
Empson,  22  Beav.  181 ;  Johnston  y.  Prendergast,  28  Beav.  480 ;  William- 
son V.  Williamson,  6  Paige,  300;  Dillard  ».  Tomlinson,  1  Munf.  183; 
Carter  v.  Cutting,  5  Mimf .  224 ;  Minuse  v.  Cox,  5  Johns.  Ch.  441 ;  Cogs- 
well V.  Cogswell,  2  Edw.  Ch.  231. 

2  Lund  V.  Lund,  41  N.  H.  359  ;  Steams  v.  Brown,  1  Pick.  530  ;  Wyman 
V.  Hubbard,  13  Mass.  232;  Griswold  v.  Chandler,  5  N.  H.  499  ;  Mathes  v. 
Bennett,  21  N.  H.  199;  Wendell  v.  French,  19  N.  H.  205;  Chambers  v. 
Kerns,  6  Jones,  Eq.  280. 

8  Lewin  on  Trusts,  268. 
*  Graves's  App.,  50  Penn.  St.  189. 
6  Cogbill  V.  Boyd,  77  Va.  450. 
656 


CHAP.   XV.]  INVESTMENT.  [§  463. 

representations  that  the  mortgage  was  ready,  and  there  was 
no  mortgage,  and  the  solicitors  misapplied  the  money,  the 
trustees  were  held  to  make  up  the  loss.^  When  the  money 
is  paid  in  to  a  banker  or  broker  for  investment,  the  trustees 
must  sec  that  the  investment  is  made  at  once,  and  the  securi- 
ties taken  in  the  proper  form,  or  they  will  be  liable  for  any 
loss  that  may  hajjpen  ;^  or  where  money  is  suffered  to  remain 
in  the  hands  of  third  persons  unnecessarily,  and  a  loss  hap- 
pens, the  trustees  must  make  it  up.^  So,  if  the  trustee  pays 
the  money  into  a  bank  in  his  own  name,  and  not  in  the  name 
of  the  trust,  he  will  be  responsible  for  the  money  in  case  of 
the  failure  of  the  bank.*  But  as  between  the  trustee,  his 
representatives,  and  the  cestui  que  trust,  the  cestui  que  trust 
may  follow  the  money  into  the  hands  of  the  banker.  If  it  is 
a  simple  account,  not  complicated  by  mixture  with  deposits 
of  the  trustee's  own  moneys  and  withdrawals,  it  is  a  simple 
debt  which  the  cestui  que  trust  may  claim  to  be  held  and 
applied  to  the  trust;  but  the  deposit  of  the  trustee's  own 
money,  and  the  withdrawal  of  part  by  checks,  will  not  de- 
feat the  right  of  the  cestui  que  trust.  The  rule  to  be  applied 
in  such  case  is  stated  in  Pennell  v.  Deffell  as  follows :  the 
checks  are  to  be  applied  to  the  earliest  items  of  deposit, 
whether  of  the  trust  fund  or  of  the  trustee's  own  money,  and 
such  earliest  items  will  be  reduced  pro  tanto.  If  anything 
of  the  trust  fund  remains  in  the  hands  of  the  banker  under 


1  Rowland  v.  TVitherden,  3  Mac.  &  G.  568 ;  Ilanbury  v.  Kirkland,  3 
Sim.  265;  Broadhuvst  v.  Balguy,  1  N.  &  C.  Ch.  16;  Ghost  r.  Waller,  9 
Beav.  497  ;  13  Beav.  336. 

2  Challen  v.  Shippam,  4  Hare,  555;  Byrne  v.  Norcott,  13  Beav.  336. 

8  Barney  v.  Saunders,  16  How.  543 ;  Anon.  Lofft,  492 ;  Fletcher  v. 
Walker,  3  Madd.  73 ;  Moyle  v.  Movie,  2  R.  &  M.  701 ;  Macdonnell  v. 
Harding,  7  Sim.  178;  Massey  v.  Banner,  4  Madd.  419;  IJ.  &  W.  241 ; 
Lowry  v.  Fulton,  9  Sim.  115;  Mathews  v.  Brice,  6  Beav.  239;  Munch  v. 
Cockerell,  9  Sim.  115  ;  Johnson  v.  Newton,  11  Hare,  160. 

4  Ibid.  ;  Wren  v.  Kirton,  11  Ves.  377 ;  Pennell  v.  Deffell,  4  De  G.,  M. 
&  G.  392;  Ex  parte  Hilliard,  1  Ves.  Jr.  89;  Rocke  v.  Hart,  11  Ves.  61 ; 
Freeman  v.  Fairlee,  3  Mer.  39  ;  Jenkins  v.  Walter,  8  G.  &  J.  218;  Luken's 
App.,  7  AVatts  &  S.  48;  Stanley's  App.,  8  Peuu.  St.  131 ;  Royer's  App., 
11  id.  36. 

VOL.  I.  —  42  657 


§  464.]  INVESTMENT.  [CIIAP.    XV. 

this  rule,  it  will  be  applied  to  the  purposes  of  the  trust.* 
This  is  a  rule  for  the  protection  of  the  cestui  que  trust  in 
case  of  the  failure  or  bankruptcy  of  the  trustee.  But  it  does 
not  affect  the  general  rule  before  stated,  that  where  a  trustee 
deposits  the  trust-money  in  his  own  name,  or  mixes  the 
money  with  his  own,  he  must  pay  interest  for  it,  and  be 
responsible  for  the  principal,  in  case  of  the  failure  of  the 
banker  or  of  any  other  loss.^ 

§  464.  Trustees  cannot  use  trust-moneys  in  their  business, 
nor  embark  it  in  any  trade  or  speculation;^  nor  can  they 
disguise  the  employment  of  the  money  in  their  business, 
under  the  pretence  of  a  loan  to  one  of  themselves,*  nor  to  a 
partnership  of   which   they  are  members;^ (a)  nor   can  the 

1  Pennell  v.  Deffell,  4  De  G.,  M.  &  G.  392 ;  Frith  v.  Cortland,  2  Hem. 
&  M.  417;  34  L.  J.  Ch.  301 ;  Kip  v.  Bank  of  N.  Y.,  10  Johns.  65 ;  Ken- 
nedy  v.  Strong,  id.  289  ;  School,  &c,  v.  Kirwin,  25  111.  73 ;  McAllister  e. 
Commonwealth,  30  Penn.  St.  536;  Morrison  v.  Kinstra,  55  Miss.  71. 

2  Mumford  v.  Murray,  6  Johns.  Ch.  1 ;  Kellett  v.  Rathbun,  4  Paige 
102;  Jacot  v.  Emmett,  11  Paige,  142;  De  Peyster  v.  Clarkson,  2  Wend.  77; 
Garniss  v.  Gardner,  1  Edw.  Ch.  128 ;  Spear  v.  Tinkham,  2  Barb.  Ch.  211; 
Merrick's  Est.,  2  Ash.  485;  Dyott's  Est.,  2  Watts  &  S.  565;  Beverleys  v. 
Miller,  6  Munf .  99  ;  Diffeuderffer  v.  Winder,  3  G.  &  J.  341  ;  Peyton  v. 
Smith,  2  Dev.  &  B.  Eq.  325;  Jameson  v.  Shelly,  2  Humph.  198;  Kerr 
V.  Laird,  27  Miss.  544;  In  re  Thorp,  Davies,  290. 

3  Tebbs  V.  Carpenter,  1  Madd.  304  ;  Lee  v.  Lee,2  Vern.  548;  Adye  v. 
Feuilleteau,  1  Cox,  24;  Piety  v.  Stace,  4  Ves.  622;  Docker  ii.  Somes,  2 
Myl.  &  K.  655;  Palmer  v.  Mitchel,  id.  672,  n.;  Miller  v.  Beverleys,  4  Hem. 
&  M.  415;  In  re  Thorp,  Davies,  290;  Manning  v.  Manning,  1  Johns.  Ch. 
527  ;  Brown  v.  Ricketts,  4  Johns.  Ch.  303.  At  one  time  it  was  held  that 
executors  might  employ  money  in  their  trade,  especially  if  they  were 
solvent,  and  if  the  assets  were  generally,  and  not  specifically,  bequeathed. 
Grovesnor  V.  Cartwright,  2  Ch.  Cas.  212;  Linch  v.  Cappey,  id.  35;  Brown 
V.  Litton,  1  P  Wms.  140 ;  Ratcliffe  v.  Graves,  2  Ch.  Cas.  152;  Bromfield 
V.  Wytherley,  Pr.  Ch.  505 ;  Adams  v.  Gale,  2  Atk.  106  ;  Child  v.  Gibson, 
id.  603 ;  but  Mr.  Lewin  says  that  Lord  North  overruled  above  forty 
cases,  and  a  twenty  years'  practice,  in  Ratcliffe  i-.  Graves,  1  Vern.  196  ; 
Newton  v.  Bennett,  1  Bro.  Ch.  361 ;  Adye  v.  Feuilleteau,  1  Cox,  25 ; 
Lewin  on  Trusts,  255,  276. 

4  Townend  v.  Townend,  1  Gif.  201. 

5  Kyle  V.  Barnett,  17  Ala.  306. 

(a)  See  30  Am.  L.  Reg.  (n.  s.)  569. 
658 


CHAP.    XV.]  INVESTMENT.  [§  4C5 

money  be  loaned  on  security  to  be  rcloancd  back  to  the 
trustee,  or  by  the  trustee  at  a  j)rofit.*  If  a  trustee  makes  such 
use  of  the  money,  he  will  be  responsible  for  all  loss,  and  he 
may  be  compelled  to  pay  the  highest  rate  of  interest;  or  the 
cestui  que  trust  may  follow  the  money,  and  insist  upon  all 
the  prolits  made  by  such  use;  and  if  the  trustee  is  a  trader  or 
business  man,  he  will  be  presumed  to  use  and  employ  the 
money  in  his  business  if  he  deposits  it  in  bank  in  his  own 
name;  for  such  business  men  must  generally  keep  some 
money  in  bank  for  the  purposes  of  their  credit,  and  such 
trust-money  answers  the  purpose  as  if  it  was  their  own.-  If 
the  trust  fund  is  employed  in  business,  the  whole  increase 
will  belong  to  the  fund;  but  if  the  trustee  is  also  one  of  the 
beneficiaries,  he  will  be  entitled  to  his  share,  and  it  will 
go  to  his  representatives  upon  his  death. ^  Where  an  exec- 
utor bought  stock  in  his  own  name  with  the  trust  fund, 
and  the  stock  rose  in  price,  it  was  held  that  he  was  liable  for 
the  market-price  of  the  stock  at  the  time  of  the  decree.  If 
the  investment  is  profitable,  the  cestuis  que  trust  are  entitled 
to  the  profits ;  if  disastrous,  they  are  entitled  to  interest  on 
the  money ;  and  if  the  investment  has  been  made  with  funds 
of  the  estate  mingled  with  funds  of  the  executor  in  various 
stocks,  and  the  funds  of  the  estate  cannot  be  traced  and  iden- 
tified in  any  particular  stocks,  the  cestuis  que  trust  are  enti- 
tled to  select  the  most  profitable  stocks.* 

§  465.  There  is  said  to  be  a  distinction  between  an  orig- 
inal investment  improperly  made  by  trustees,  and  an  invest- 
ment made  by  the  testator  himself,  and  simply  continued  by 
a  trustee ;  ^  (a)  but  it  is  a  distinction  that  cannot  be  safely 

1  Ratcliffe  v.  Graves,  2  Ch.  Cas.  152 ;   1  Vern.  19G. 

2  Treves  v.  Town.shend,  1  Bro.  Ch.  284;  Moons  v.  De  Bernales,  1  Russ. 
301 ;  In  re  Ililliard,  1  Ves.  Jr.  90  ;  Sutton  i'.  Sharp,  1  Russ.  146:  Rocke 
V.  Hart,  11  Ves.  61 ;  Brown  v.  Southhouse,  3  Bro.  Ch.  107;  Lamb's  App., 
58  Penn.  St.  142. 

8  Hook  V.  Dyer,  47  Mo.  214. 
*  Norris's  App.,  71  Penn.  St.  106. 

6  Powell  V.  Evans,  5  Ves.  841 ;  Clough  r.  Bond,  3  Myl.  cSc  Cr.  496 ; 

(«)  See  fu  re  Chapman,  [189G]  2    Shinn's  Estate,  166  Penn.  St.  121 ; 

Ch.   703;    Re  Roth,  74   L.   T.  50;    Johns  v.  Herbert,  2  App.  D.  C.  485; 

659 


§  465.] 


INVESTMENT. 


[chap.  XV. 


acted  upon.  If  a  testator  gives  any  directions  in  his  will 
to  continue  his  investments  already  made,  trustees  must  of. 
course  follow  such  directions;  and  if  they  follow  them  in 
good  faith,  they  will  not  be  liable  for  any  losses,  unless  they 
are  negligent  in  failing  to  change  an  investment,  when  it 
ought  to  be  changed  to  save  it ;  (a)  for  it  cannot  be  supposed 
that  the  direction  of  a  testator  to  continue  a  certain  invest- 
ment relieves  the  trustees  from  the  ordinary  duty  of  watch- 
ing such  investment,  and  of  calling  it  in  when  there  is 
imminent  danger  of  its  loss  by  a  change  of  circumstances. 
If  no  directions  are  given  in  a  will  as  to  the  conversion  and 
investment  of  the  trust  property,  trustees  to  be  safe  should 
take  care  to  invest  the  property  in  the  securities  pointed  out 
by  the  law.  It  is  true  that  a  testator  during  his  life  may 
deal  with  his  property  according  to  his  pleasure,  and  invest- 
ments made  by  him  are  some  evidence  that  he  had  confi- 
dence in  that  class  of  investments;  but,  in  the  absence  of 

Harvard  Coll.  v.  Amory,  9  Pick.  446 ;  Thompson  v.  Brown,  4  Johns.  Ch. 
628;  Knight  v.  Plymouth,  3  Atk.  480;  1  Dick.  120;  Rowth  v.  Howell,  3 
Ves.  565  ;  Wilkinson  v.  Stafford,  1  Ves.  Jr.  41;  Vez  v.  Emery,  5  Ves.  144  ; 
Barton's  Est.,  1  Pars.  Eq.  24;  Murray  v.  Feinour,2  Md.  Ch.  418;  Brown 
V.  Campbell,  Hopkins,  233;  Smith  v.  Smith,  4  Johns.  Ch.  283.  See  11 
Amer.  Law  Reg.  208  (n.  s.),  April,  1874 ;  Pierce  v.  Bowker,  130  Mass. 
262,  where  a  trustee  in  good  faith  continued  an  investment  in  railroad 
stock  originally  made  by  his  testator,  until,  gradually  falling  in  value,  it 
became  worthless. 


Buerhaus  v.  De  Saussure,  41  S.  C. 
457 ;  Porter's  Estate,  25  N.  Y.  S. 
822.  In  such  case,  the  trustee  is 
bound  to  use  good  judgment  and 
diligence,  but  he  is  not  an  insurer 
against  depreciation.  In  re  Hurst, 
67  L.  T.  96. 

In  McLouth  v.  Hunt,  154  N.  Y. 
179,  where  the  investments  in  ques- 
tion, which  were  chiefly  in  govern- 
ment bonds,  were  made  by  the  tes- 
tator, and  had,  at  her  death,  a 
market  value  in  excess  of  their  face 
value,  and  the  will  directed  that  the 
660 


"  full  income  "  should  be  paid  to 
the  life-tenant,  it  was  held  to  be  the 
testator's  intention  that  the  life-ten- 
ant's income  should  not  be  dimin- 
ished to  make  up  the  excess  or 
premium. 

(a)  See  In  re  Sharp,  45  Ch.  D. 
286 ;  Pinney  v.  Newton,  66  Conn. 
141;  Stong's  Estate,  160  Penn.  St. 
13;  Sheffield  v.  Parker,  158  Mass. 
330;  Griggs  v.  Veghte,  47  N.  J. 
Eq.  179;  Grinnell  v.  Baker,  17 
R.  I.  41 ;  Eldredge  v.  Greene,  id.  17. 


CHAP.    XV.]  INVESTMENT.  [§  466. 

directions  in  the  will,  it  is  more  rcasonaljlc  to  suppose  that 
a  testator  intended  that  his  trustees  should  act  according  to 
law.  Consequently,  in  States  where  the  investments  which 
trustees  may  make  are  pointed  out  by  law,  the  fact  that  the 
testator  has  invested  his  property  in  certain  stocks,  or  loaned 
it  on  personal  security,  will  not  authorize  trustees  to  continue 
such  investments  beyond  a  reasonable  time  for  conversion 
and  investment  in  regular  securities.^  But  in  States  where 
there  are  no  fixed  funds  or  securities  in  which  trustees  shall 
invest,  the  fact  that  a  testator  has  invested  his  property  in 
particular  stocks,  shares  of  corporations,  mortgages,  or  other 
securities,  thus  indicating  his  confidence  in  such  invest- 
ments, will  go  far  to  justify  the  trustees  in  continuing 
them.  2  So  trustees,  in  the  usual  course  of  dealing,  may 
take  notes  on  short  time  for  small  sums  of  rent  due  their 
estate,  that  having  been  the  usual  course  of  dealing  with 
the  tenants  by  the  testator.  ^  Taking  all  the  cases  together, 
it  would  appear  to  be  a  settled  principle  that  trustees  are 
not  justified,  in  the  absence  of  express  or  implied  directions 
in  the  will,  in  continuing  an  investment  permanently,  made 
by  the  testator,  which  they  would  not  be  justified  themselves 
in  making.  The  principle  probably  has  this  qualification, 
that  if  a  trustee  continue  such  investment  in  good  faith,  and 
a  loss  happens,  he  would  be  held  to  replace  the  original 
sum  only,  without  interest.* 

§  466.  Except  upon  emergency,  to  protect  the  fund  from 
depreciation,  or  to  convert  wasting  securities  to  those  of  a 
permanent  character,  or  investments  in  securities  that  are 
not  authorized  by  law  into  such  as  are  allowed,  trustees 
may  not  sell  or  vary  specific  securities  given  in  trust,  nor 
securities  left  by  a  testator  in  which  he  has  himself  invested 

1  Hemphill's  App.,  18  Penn.  St.  303 ;  Fray's  App.,  34  id.  100,  over- 
rules the  case  of  Barton's  Est.,  1  Pars.  Eq.  24;  Kimball  v.  Reading,  11 
Foster,  352. 

2  Harvard  Coll.  v.  Amory,  9  Pick.  446. 
8  Smith  V.  Smith,  4  Johns.  Ch.  283. 

*  Lowson  V.  Copelaud,  2  Bro.  Ch.  157;  Tebbs  v.  Carpenter,  1  Madd. 
293. 

661 


§  466.]  INVESTMENT.  [CHAP.    XV. 

the  funds.^(a)  Nor  can  they  change  the  character  of  the 
investments  from  realty  to  personalty,  or  vice  versa,  without 
special  authority. ^  And  if,  without  authority,  trustees 
change  investments  properly  made  for  others  improper  or 
unauthorized  by  law,  they  may  be  required  to  replace  the 
securities  sold,  and  also  to  invest  any  profits  which  may 
have  accrued  in  the  same  securities ;  ^  or  the  cestui  que  trust 
may  elect  to  take  the  money  with  interest  upon  it.*     And 

1  Angell  V.  Dawson,  2  Y.  &  C.  316  ;  Flyer  v.  Flyer,  3  Beav.  550;  Ne- 
ville V.  Fortescue,  16  Sim.  333;  Boys  i;.  Boys,  28  Beav.  436;  Murray  v. 
Feinour,  2  Md.  Ch.  418 ;  Ward  v.  Ketchen,  30  N.  J.  Eq.  31 ;  Crackelt  v. 
Bethuiie,  1  Jac.  &  W.  566;  Witter  v.  Witter,  3  P.  Wms.  100;  Hammond 
I'.  Hammond,  2  Bland,  306.  But  where  the  trustee  has  performed,  with- 
out authority,  an  act  which,  at  the  time  it  was  done,  was  obviously  for  the 
benefit  of  all  concerned,  and  -which  upon  proper  application  would  have 
been  ordered,  his  act  will  be  ratified,  and  held  of  the  same  validity  as  if 
previously  ordered.  Gray  v.  Lynch,  8  Gill,  405.  Where  trustees  under 
a  will  exceeded  their  power  by  buying  real  estate  with  trust  funds,  and 
continued  to  buy  and  sell,  at  first  with  a  profit,  but  ultimately  with  a  loss 
of  a  large  part  of  the  fund,  no  lack  of  good  faith  being  found,  they  were 
held  liable  for  the  amount  of  the  trust  fund  before  the  first  purchase  of 
real  estate  only,  with  interest  from  the  time  the  beneficiary  should  have 
received  the  income.     Baker  v.  Disbrow,  3  Redf.  (N.  Y.)  348. 

2  Post,  §  602,  et  seq. ;  Quick  v.  Fisher,  9  N.  J.  Eq.  802. 

3  Powlett  V.  Herbert,  1  Ves.  Jr.  297;  Evans  v.  Inglehart,  6  Gill  &  J. 
192.  In  such  cases  of  unauthorized  varying  the  securities  the  trustee 
takes  upon  himself  the  burden  of  proving  entire  bona  Jides,  and  that  there 
was  reasonable  ground  to  believe  that  the  fund  would  be  benefited ;  and 
if  this  can  be  shown  the  courts  will  sustain  his  action.  Washington  i'. 
Emery,  4  Jones  (N.  C),  32;  Cornwise  v.  Bourgum,  2  Ga.  Dec.  15. 

4  Forrest  v.  Elwes,  4  Ves.  497 ;  Fowler  v.  Reynall,  2  De  G.  &  Sm. 
749;  3  ISIac.  &  G.  500. 

(a)  See  Clark  v.  Trelawney,  60  Citizens'  Nat.  Bank  v.  Jefferson,  88 

L.  T.  620;  Re  Walker,  62  id.  449;  Ky.  6.31.     In  Drake  v.   Crane,  127 

Spencer  v.  Weber,  49  N.  Y.  S.  687 ;  Mo.  85,  trustees  were  held  justified 

Jones  V.  Atchison,  &c.  R.  Co.,  150  in  using  trust  funds  in  the  erection 

Mass.  304;  Hodges'  Estate,  66  Vt.  of  a  hotel  to  aid  in  developing  and 

70;  Smith  ?;.  Hall  (R.  I.),  37  Atl.  enhancing  the  value  of  the  trust  real 

698  ;  Hannah  v.  Carnahan,  65  Mich,  estate. 

601;    Rabb  v.  Flenniken,  29  S.  C.         A  power  to  reinvest  is  not  necessa- 

278  ;  Powers  v.  Bullwinkle,  33  S.  C.  rily  exhausted  by  a  single  exercise 

293;  Claiborne  v.  Holland,  88  Va.  thereof.    Hayes  r.  Applegate  (Ky.), 

1046;  Taylor  v.  Kemp,  86  Ga.  181;  39  S.  W.  436. 
662 


CHAP.    XV.]  INVESTMENT.  [§  466. 

even  if  trustees  have  express  power  to  vary  the  securities, 
they  will  not  be  allowed  to  do  so  capriciously,  or  without 
some  apparent  object;^  and  they  ought  not  to  sell  out  an 
investment  without  having  in  view  an  immediate  reinvest- 
ment: if  they  do  so,  they  may  be  held  to  pay  the  loss  that 
may  occur. ^  If  an  investment  in  a  particular  fund  or  stock 
is  directed  by  a  testator,  it  cannot  be  varied  except  by  the 
consent  of  all  the  parties  interested;  and  if  there  are  par- 
ties not  sui  juris,  or  not  in  being,  the  court  itself  will  not 
order  a  change.^  Where  an  investment  was  not  to  be  varied 
without  the  consent  of  the  testator's  wife,  and  she  waived 
the  provisions  of  the  will,  her  consent  was  still  held  neces- 
sary.* In  those  States  where  there  are  no  stocks,  funds,  or 
securities,  prescribed  by  law,  or  by  the  order  of  court,  in 
which  trustees  must  invest  in  order  to  be  safe,  and  invest- 
ments are  once  made  by  trustees  in  safe  and  proper  securi- 
ties, or  where  investments  are  left  by  the  testator  in  such 
securities,  the  courts  will  be  very  adverse  to  a  change,  and 
will  not  allow  one,  except  for  some  very  controlling  motive. 
The  reason  is,  that  where  there  is  no  rule  governing  invest- 
ments by  trustees,  except  that  they  shall  act  in  good  faith 
and  upon  a  sound  discretion,  courts  are  very  averse  to  change 
proper  investments  once  made,  and  select  others  by  so  very 
indefinite  a  rule.^(a) 

1  Brice  v.  Stokes,  11  Ves.  324  ;  De  Manneville  v.  Crompton,  1  V.  &  B. 
359  ;  Fowler  v.  Reynall,  :i  Mac.  &  G.  500. 

2  Ilanbury  v.  Kirkland,  3  Sim.  265 ;  Broadhurst  v.  Balguy,  1  Y.  &  C 
Ch.  16 ;  Watts  v.  Girdlestone,  6  Beav.  190. 

«  Wood  V.  Wood,  5  Paige,  596;  Trans.  University  r.  Clay,  2  B.  Mon. 
38G;  Contee  t'.  Dawson,  2  Bland,  264;  Deaderick  v.  Cantiell,  10  Yerg. 
263;  Burrill  v.  Sheil,  2  Barb.  457;  Persoueau  v.  Personeau,  1  Des.  521; 
Lamb's  App.,  58  Penn.  St.  142. 

*  Plympton  v.  Piympton,  6  Allen,  178. 

6  Murray  r.  Feinour,  2  Md.  Ch.  418. 

(a)  Trustees     expressly   empow-  the  testator's  business,  and  in  carry- 

ered  by  the  will  to  postpone  the  sale  ing  on  the  business  with  intent  to 

and  conversion  of  any  part  of  the  benefit  the  tenant  for  life  whom  the 

testator's  estate   for  such   time   as  will  entitles  to  the  profits  until  a 

seems  expedient  to  them  were  held  sale    is    made.       /»  re    Crowther, 

justified  in  postponing  the  sale  of  [1895],  2  Ch.  56.      Such  power  ei- 

663 


§  467.] 


INVESTMENT. 


[chap.  XV. 


§  467.  If  trustees  make  an  improper  investment  with  the 
knowledge,  assent,  and  acquiescence,  or  at  the  request  of  the 
cestui  que  trust,  they  cannot  be  held  to  make  good  the  loss, 
if  one  happens ;  ^  but  the  cestuis  que  trust,  to  be  affected  by 
such  consent  or  acquiescence,  must  be  sui  juris,  and  capable 
of  acting  for  themselves  ;2  if,  therefore,  they  are  married 
women,  or  minor  children,  or  other  persons  incapacitated, 
or  under  disability,  they  cannot  be  bound  by  any  alleged 
acquiescence,  nor  by  their  urgent  requests,^  although  a  mar- 

1  Booth  V.  Booth,  1  Beav.  125  ;  Langford  r.  Gascoyne,  11  Ves.  333 ; 
Nail  17.  Punter,  5  Sim.  5.55;  Farrar  v.  Barraclough,  2  Sm.  &  G.  231; 
Broadhurst  v.  Balguy,  1  Y.  &  C.  Ch.  16  ;  Raby  v.  Ridehalgh,  7  De  G., 
]M.  &  G.  104 ;  Walker  v.  Symonds,  3  Swanst.  64  ;  Munch  v.  Cockerell,  5 
Myl.  &  Cr.  178;  Poole  v.  Munday,  103  Mass.  174;  Brice  v.  Stokes,  11 
Yes.  319. 

2  Buckeredge  ?'.  Glasse,  1  Cr.  &  Phil.  135. 

3  Walker  v.  Symonds,  3  Swanst.  69 ;  Hopkins  v.  Myall,  2  R.  &  M.  86  ; 
Ryder  v.  Bickerton,  3  Swanst.  80,  n.  ;  March  v.  Russell,  3  Myl.  &  Cr.  31 ; 


pressly  given  to  carry  on  a  business, 
accompanied  by  a  direction  to  sell, 
will  not  justify  the  trustee  in  carry- 
ing on  the  business  indefinitely,  but 
only  for  a  reasonable  time.  In  re 
Smith,  [1896]  1  Ch.  171,  where  two 
years  from  the  testator's  death  was 
deemed  a  reasonable  time.  Such  a 
power  subjects  the  general  assets  of 
the  estate  to  payment  for  goods 
bought  on  the  executor's  credit  to 
carry  on  the  business.  Willis  v. 
Sharp,  115  N.  Y.  396.  It  does 
not  enable  the  trustee  to  mort- 
gage real  estate  for  debts  incurred 
by  him  in  carrying  on  the  busi- 
ness. In  re  Webb,  63  L.  T.  545  ; 
see  In  re  Jones,  61  id.  661.  In 
general,  when  debts  are  contracted 
by  trustees  who  are  authorized  to 
carry  on  business,  their  creditors 
can  only  resort  to  the  trust  fund 
■when  the  trustees  are  entitled  to  be 
indemnified  therefrom,  and  the 
664 


creditors  reach  it  only  by  being  sub- 
stituted to  the  equities  of  the  trus- 
tees. Dowse  V.  Gorton,  40  Ch.  D. 
536.  See  Mason  v.  Pomeroy,  151 
Mass.  164,  167 ;  154  id.  481 ;  Wod- 
drop  V.  Weed,  154  Penn.  St.  307; 
Young  V.  Weed,  id.  316. 

It  is  not  a  breach  of  trust  for  the 
trustee  to  set  up  for  himself  in  a 
similar  kind  of  business,  if  there  is 
no  solicitation  of  old  customers  or 
deception  ;  but  such  an  act  on  his 
part  is  ground  for  his  removal  as 
trustee,  as  his  position  is  inconsis- 
tent with  the  best  interests  of  the 
trust.  Moore  r.  McGlynn,  [1894] 
1  Ir.  R.  74. 

Executors  are  not  bound  to  carry 
out  the  testator's  contracts,  which 
■were  personal  and  bound  him  only. 
Marvel  r.  Phillips,  162  Mass.  399; 
see  Russell  r.  Buckhout,  87  Hun, 
46 ;  Cox  r.  Martin,  75  Miss.  229. 


CHAP.    XV.] 


INVESTMENT. 


[§  467. 


ried  woman  may  acquiesce  in  the  investment  of  trust  prop- 
erty, given  to  her  sole  and  separate  use,  in  such  manner  that 
she  cannot  afterwards  complain  of  the  investment  as  im- 
proper.^ But  in  order  that  the  cestuis  que  trust  may  be  bound 
by  their  acquiescence  in  an  improper  investment,  there  must 
be,  on  their  part,  full  knowledge  of  all  the  facts  and  circum- 
stances;"'^ and  the  trustee  must  be  free  from  all  suspicion  of 
misrepresentation  or  concealment.  ^  (a)     The  remainder-man 

Nail  V.  Punter,  5  Sim.  55G  ;  Kellaway  v.  Johuson,  5  Beav.  319  ;  Bateman 
r.  Davis,  3  Madd.  98;  Cocker  v.  Quayle,  1  R.  &  M.  535;  Murray  v. 
Feinour,  2  Md.  Ch.  422  ;  Bartou's  Est.,  1  Pars.  Eq  47  ;  Keut  v.  Plumb, 
57  Ga.  207. 

1  Mantf.  Leith,  15  Beav.  524;  Brewer  v.  Swirles,  2  Sm.  &  G.  219; 
Sherman  v.  Parish,  53  N.  Y.  483.  But  she  may  maintain  a  suit  to  cor- 
rect the  irregularity,  although  she  cannot  claim  anything  as  for  a  breach 
of  the  trust.     Ibid. 

2  Munch  i^.  Cockerell,  5  Myl.  &  Cr.  178;  Montford  v.  Cadogan,  17 
Ves.  489.  And  they  must  be  apprised  of  the  effect  of  their  legal  rights. 
Adair  v.  Brimmer,  74  N.  Y.  539. 

8  Burrows  v.  Walls,  5  De  G.,  M.  &  G.  233 ;  Underwood  }•.  Stevens,  1 
Mer.  712;  Walker  v.  Symonds,  3  Swanst.  1. 


(a)  Nichols,  Appellant,  157  Mass. 
20;  McKim  v.  Glover,  161  id.  418; 
White  V.  Sherman,  168  111.  589; 
New  York  Life  Ins.  Co.  v.  Kane, 
45  N.  Y.  S.  543 ;  English  v.  ]Mc- 
Intyre,  51  id.  G97 ;  Smith  v.  Hew- 
lett, id.  910;  40  Am.  Dec.  518.  An 
investment  on  securities  of  a  de- 
scription authorized  by  the  trust, 
where  the  breach  of  trust  consists 
only  in  not  exercising  due  caution 
in  taking  it,  stands  on  a  different 
footing  from  an  investment  of  an 
unauthorized  description,  which  the 
beneficiary  must  either  accept  or  re- 
ject. In  re  Salmon, 42  Ch.  D.  351  ; 
1  Ames  on  Trusts  (2d  ed.),  487,  and 
note.  But  the  trustee's  liability  for 
an  improper  investment  is  not  af- 
fected by  the  fact  that  the  security 
upon  which  it  was  made  has  since 
been  disposed  of,  as  against  a  bene- 


ficiary who  never  consented  thereto 
or  impeded  the  trustee's  obtaining 
the  benefit  of  such  investment. 
Head  v.  Gould,  [1898]  2  Ch.  250. 

A  trustee  who  distributes  a  trust 
fund  among  strangers  at  the  request 
of  a  beneficiary,  and  upon  his  cove- 
nanting to  indemnify  him,  cannot 
afterwards  recover  under  the  cove- 
nant for  the  loss  of  a  beneficial 
interest  in  the  fund  to  which  he 
subsequently  becomes  entitled. 
Evans  v.  Benyon,  37  Ch.  D.  329  ; 
Crichton  v.  Crichton,  [1895]  2  Ch. 
853,  858. 

A  pretended  investment,  when 
fraudulent,  as  when  a  trustee  seeks 
to  place  among  the  trust  assets 
doubtful  or  worthless  securities 
owned  by  himself,  is  voidable  at  the 
option  of  the  beneficiary,  to  whom 
any  third  party  participating  in  the 
6  Go 


§  467.]  INVESTMENT.  [CHAP.    XV. 

cannot  acquiesce  in  an  investment,  until  his  interest  falls 
into  possession,  so  as  to  be  bound.'  If  the  improper  invest- 
ment has  been  made,  at  the  request  of  the  tenant  for  life, 
and  such  tenant  has  received  an  increased  income  by  reason 
of  the  improper  investment,  such  increased  income  can  be 
recovered  back  from  the  tenant  for  life.^  But  if  the  tenant 
for  life  protested  against  the  illegal  investment,  and  desired 
the  trustees  to  make  a  proper  investment,  the  increased 
income  from  the  illegal  investment  cannot  be  recovered 
back. 3  In  all  cases  the  assent  to  an  illegal  investment  must 
be  so  formal  that  the  trustees  are  justified  in  acting  upon  it. 
If  it  is  a  mere  expression  that  a  certain  investment  would 
be  safe,  without  any  intention  that  the  trustees  should  act 
upon  it,  the  cestui  que  trust  will  not  be  bound.^  So  an 
assent  to  a  particular  investment  cannot  justify  a  subsequent 
mismanagement  of  the  investment.^  And  acquiescence  by 
the  cestui  que  trust  will  not  be  presumed  from  mere  lapse  of 
time,  if  he  has  done  nothing  to  acknowledge  it,  or  has  re- 
ceived no  benefit.^  Any  party  whose  rights  are  endangered 
by  an  improper  or  unauthorized  investment  may  apply  to 
the  court  for  redress ;  ^  but  if  the  investment  was  made  by 
mistake,  or  has  been  corrected,  the  trustees  will  not  be  re- 
moved, or  they  will  not  be  deprived  of  the  funds. ^ 

1  Bennett  v.  CoUey,  5  Sim.  181;  2  Myl.  &  K.  225;  Brown  v.  Cross,  14 
Beav.  105. 

2  Dimes  v.  Scott,  4  Russ.  195;  Mehrtens  v.  Andrews,  3  Beav.  72; 
Howe  V.  Dartmouth,  7  Ves.  150;  Mills  v.  Mills,  7  Sim.  101 ;  Pickering  v. 
Pickering,  4  Myl.  &  Cr.  289;  Holland  v.  Hughes,  16  Ves.  114;  Hood  v. 
Clapham,  19  Beav.  90  ;  M'Gachen  v.  Dew,  15  Beav.  84;  Raby  v.  Ride- 
halgh,  7  De  G.,  M.  &  G.  104;  Band  t;.  Tardell,  id.  628;  Stewart  v.  San- 
derson, L.  R.  10  Eq.  26. 

8  Bate  V.  Hooper,  5  De  G.,  M.  &  G.  358;  and  see  Turquand  r.  Mar- 
shall, L.  R.  6  Eq.  112;  Hood  v.  Clapham,  19  Beav.  90. 

4  Nyce's  App.,  5  Watts  &  S.  254. 

5  Lockhart  v.  Reilly.  39  Eng.  L.  &  Eq.  135. 
«  Phillipson  v.  Gatty,  7  Hare,  516. 

7  Bromley  v.  Kelly,  39  L.  J.  Ch.  274.  «  Ibid. 

fraud  is  also  accountable.    Warren  443 ;    Stokes  v.  Terrell  (Miss.),  23 

V.    Union   Bank,    157   N.   Y.   259 ;  So.  371 ;  Moody  &  M.  Co.  v.   Trus- 

Friesenhahn  v.  Bushnell,  47  Minn,  tees,  99  Wis.  49. 
666 


CIIAr.    XV.]  IXTEREST.  [§  4G8. 

§  4G8.  It  is  diflficnlt  to  lay  down  any  general  rule  that  is 
equitable  and  applicable  to  all  cases,  as  to  the  interest  that 
trustees  shall  pay  upon  trust  funds  in  their  hands.  In  Eng- 
land, (a)  if  trustees  suiTer  money  to  remain  in  their  own 
hands,  or  in  the  hands  of  third  persons,  or  in  bank  for  an 
unreasonable  time,  in  addition  to  their  liability  for  its  loss 
during  such  delay,  they  will  be  charged  with  interest  at  the 
rate  of  four  per  cent ;  but  if  the  trustees  are  grossly  negli- 
gent or  corrupt,  or  improperly  call  in  the  money  from  a 
proper  investment,  and  suffer  it  to  lie  idle,  or  if  they  use  it 
in  trade  or  speculation,  or  invest  it  in  improper  places,  the 
court  will  charge  them  with  interest  at  the  rate  of  five  per 
cent;  and,  in  certain  special  cases  of  misconduct,  the  court 
will  order  annual  or  semi-annual  rests,  for  the  purpose  of 
charging  them  with  compound  interest.  In  the  United 
States  there  is  no  law  by  which  different  rates  of  interest 
can  be  applied  to  different  degrees  of  negligence  or  miscon- 
duct; and  the  only  question  here  is,  whether  simple  or  com- 
pound interest  shall  be  imposed.  The  general  rules,  so  far 
as  they  can  be  drawn  from  all  the  cases,  are  as  follows :  (1) 
If  a  trustee  retains  balances  in  his  hands  which  he  ought  to 
have  invested,  or  delays  for  an  unreasonable  time  to  invest, 
or  if  he  mingles  the  money  with  his  own,  or  uses  it  in  his 
private  business,*  or  deposits  it  in  bank  in  his  own  name, 
or  in  the  name  of  the  firm  of  which  he  was  a  member,  or 
neglects  to  settle  his  account  for  a  long  time,  or  to  distribute 
or  pay  over  the  money  when  he  ought  to  do  so,^  he  will  be 
liable  to  pay  simple  interest  at  the  rate  established  by  law  as 
the  legal  rate  in  the  absence  of  special  agreements."     This 

1  Cool  V.  Jackman,  13  Brad.  (111.)  560  ;  Lehmann  v.  Rothbarth,  111  111. 
185  ;  Society  v.  Pelham,  58  N.  H.  566  ;  the  trustee  must  pay  interest  from 
the  time  of  diverting  the  fund. 

2  Judd  V.  Dike,  30  Minn.  385 ;  Pickering  r.  De  Rochemont,  60  N.  II. 
179  ;  Lyons  v.  Chamberlin,  25  Ilun,  49. 

8  Burdick  r.  Garrick,  L.  II.  5  Ch.  241  ;  Blogg  v.  Johnson,  L.  R.  2  Ch. 
225  ;  Berwick  v.  Murray,  7  De  G.,  M,  &  G.  843  ;  Treves  v.  Townshend,  1 

(a)  See  Collins  v.  Wade,  [1896]  1  Ir.  R.  340 ;  1  Ames  on  Trusts  (2d 
ed.),  408,u. 

667 


§  468.]  INTEREST.  [chap.  XV. 

rule  is  subject  to  tlie  qualification  that  trustees  cannot  make 
any  advantage  to  themselves  out  of  the  trust  fund;  and  if 
they  make  more  than  legal  interest,  they  shall  pay  more,  as, 
if  they  make  usurious  loans,  they  shall  be  charged  with  all 

Bro.  Ch.  384;  Forbes  v.  Ross,  2  Bro.  Ch.  430;  Piety  v.  Stace,  4  Ves.  620; 
Ashburnham  v.  Thompson,  13  Ves.  402  ;  Bates  v.  Scales,  12  Ves.  402  ; 
Pocock  V.  Reddington,  5  Ves.  794;  Sutton  v.  Sharp,  1  Russ.  146  ;  Crackelt 
V.  Bethune,  IJ.  &  W.  122  ;  Att.  Gen.  v.  Solly,  2  Sim.  515 ;  Heathcote  v. 
Hulme,  1  J.  &  W.  122 ;  Brown  v.  Sansome,  1  McC.  &  Y.  327 ;  Westover 
V.  Chapman,  1  Coll.  177  ;  Robinson  r.  Robinson,  1  De  G.,  M.  &  G.  247  ; 
Jones  V.  Foxall,  15  Beav.  392;  Saltmarsh  v.  Barrett,  21  Beav.  349;  Knott 
V.  Cottee,  16  Beav.  77;  Rocke  v.  Hart,  11  Ves.  58;  Lincoln  v.  Allen,  4 
Bro.  P.  C.  553 ;  Younge  r.  Combe,  4  Ves.  101 ;  Dawson  v.  Massey,  1  Ball 

6  B.  231 ;  Hicks  v.  Hicks,  3  Atk.  274 ;  Perkins  v.  Boynton,  1  Bro.  Ch. 
375 ;  King  v.  Talbott,  40  N.  Y.  86  ;  Nelson  v.  Hagerstown  Bank,  27  Md. 
53;  Cook  v.  Addison,  L.  R.  5  Ch.  466 ;  Duffy  v.  Duncan,  35  N.  Y.  187  ; 
Young  V.  Brush,  38  Barb.  294;  Owen  v.  Peebles,  42  Ala.  338;  Wistar's 
App.,  54  Pa.  St.  60  ;  Newton  v.  Bennett,  1  Bro.  Ch.  359 ;  Littlehales  v. 
Gascoigne,  3  Bro.  Ch.  73;  Franklin  v.  Firth,  id.  433;  Longmorer.  Broom, 

7  Ves.  124  ;  Trimleston  v.  Hammil,  1  Ball  &  B.  385;  Tebbs  v.  Carpenter, 

1  Madd.  290;  Mousley  v.  Carr,  4  Beav.  49;  Hoskins  v.  Nichols,  1  N.  C. 
C.  478 ;  Beverleys  v.  Miller,  6  Muuf .  99 ;  Diffenderffer  v.  Winder,  3  G.  & 
J.  341;  Mumford  v.  Murray,  6  Johns.  Ch.  1  ;  Jacot  v.  Enimett,  11  Paige, 
142 ;  Kellett  v.  Rathbun,  4  Paige,  102 ;  De  Peyster  v.  Clarkson,  2  Wend. 
77  ;  Garniss  v.  Gardner,  1  Edw.  Ch.  128  ;  Spear  v.  Tinkhara,  2  Barb.  Ch. 
211 ;  Manning  v.  Manning,  1  Johns.  Ch.  527  ;  Brown  v.  Rickett,  4  id. 
303;  Williamson  v.  Williamson,  6  Paige,  298;  Dunscomb  v.  Dunscomb,  1 
Johns.  Ch.  508 ;  Minuse  v.  Cox,  5  Johns.  Ch.  448 ;  Cogswell  v.  Cogswell, 

2  Edw.  Ch.  231 ;  Gray  v.  Thompson,  1  Johns.  Ch.  82;  Armstrong  v.  Mil- 
ler, 6  Ohio,  118;  Astor's  Est.,  5  Whar.  228;  Merrick's  Est.,  2  Ash.  285; 
Worrall's  App.,  23  Penn.  St.  44;  Graves's  App.,  50  id.  189  ;  Hess's  Est., 
69  id.  454;  Peyton  v.  Smith,  2  Dev.  &  B.  Eq.  325  ;  Jameson  v.  Shelly,  2 
Humph.  198 ;  Dyott's  Est.,  2  Watts  &  S.  655 ;  In  re  Thorp,  Davies,  290 ; 
Carr  v.  Laird,  27  Miss.  544;  Lomax  v.  Pendleton,  3  Call,  538;  Handy  v. 
Snodgrass,  9  Leigh,  484;  Dillard  v.  Tomlinson,  1  Munf.  183;  Carter  v. 
Cutting,  5  Munf.  223  ;  Wood  v.  Garnett,  6  Leigh,  271 ;  Miller  v.  Beverleys, 
4  Hem.  &  M.  415;  Chase  v.  Lockerman,  11  G.  &  J.  185;  Ringgold  v. 
Ringgold,  1  H.  &  G.  11  ;  Arthur  v.  Marster,  1  Harp.  Eq.  47  ;  Rowland  v. 
Best,  2  McCord,  Ch.  317 ;  Lyles  v.  Hattan,  6  G.  k  J.  122 ;  Griswold  v. 
Chandler,  5  N.  H.  497 ;  Lund  r.  Lund,  41  N.  H.  355 ;  Turney  v.  Williams, 
7  Yerg.  172  ;  Williams  v.  Powell,  16  Jur.  393 ;  Dornford  v.  Dorntord,  12 
Ves.  127  ;  Wright  v.  Wright,  2  McCord,  Ch.  185  ;  Knowlton  v.  Bradly,  17 
N.  H.  458 ;  McKim  v.  Hibbard,  142  Mass.  422. 

668 


CHAP.   XV.]  INTEREST.  [§  468. 

their  gains  from  the  use  of  the  money.*  If  the  trustee  cannot 
show  what  aniount  of  interest  he  has  received,  lie  shall  be 
charged  with  legal  interest  from  the  time  when  the  regular 
investment  ought  to  have  been  made.'''  There  may  be  an 
exception  to  the  rule,  that  a  deposit  of  the  trust-money  in. 
bank  in  the  name  of  the  trustee,  or  a  mixing  of  the  trust 
fund  with  his  own,  will  impose  a  liability  of  legal  interest. 
There  must  be  some  element  of  a  breach  of  trust  in  the  trans- 
action, or  a  breach  of  duty.  ^  (a)  If  therefore  the  sums  are 
small,  and  the  trustee  receives  no  credit  or  profit  from  the 
act,  or  if  the  act  was  accidental,  or  beneficial  to  the  cestui 
que  trusty  legal  interest  will  not  be  imposed  ujion  the  trustee  ;* 
or  if  the  trustee  was  a  member  of  a  firm  of  bankers,  and  he 
deposited  with  the  firm  in  his  name  as  trustee,  he  will  not 
be  charged  with  interest,  although  the  firm  made  a  profit 
from  the  deposit.^     The  proper  mode  of  taking  the  account  of 

^  Barney  v .  Saunders,  IG  IIow.  543 ;  Oswald's  App.,  3  Grant,  300  ; 
Martin  v.  Ray  born,  42  Ala.  408. 

2  Bentley  v.  Shreve,  2  Md.  Ch.  219  ;  Rapalje  v.  Hall,  1  Sandf.  Ch. 
339. 

8  McKnight  v.  Walsh,  23  N.  J.  Eq.  136  ;  24  N.  J.  Eq.  492. 

*  Rapalje  r.  Hall,  1  Sandf.  Ch.  399;  Graves's  App.,  50  Penn.  St.  189  ; 
Bond  V.  Abbott,  42  Ala.  499. 

6  Hess's  Est.,  69  Penn.  St.  454. 

(a)  See   Dorris    v.    Miller,    105  cases.      See    Bartol's    Estate,    182 

Iowa,   564  ;  Re  Myers,  131  N.   Y.  Penn.  407  ;   Dick's  Estate,  183  id. 

409 ;  Clark's  Estate,   39   N.   Y.   S.  647 ;  Rioketts  v.  Ricketts,  04  L.  T. 

722;  In  re  Muller,  52  id.  565 ;  West-  263  ;  English  v.  Mclntyre,  51  N.  Y. 

over  V.  Carman,  49  Neb.  397;  Fant  S.   697  ;    Carver's  Estate,  118  Cal. 

V.  Dunbar,   71  Miss.    576 ;    Truett  73 ;  Rush  v.  Steele,  93  Va.  526 ;  1 

V.  Williams,  101  Ga.  311 ;  Danforth's  Ames  on  Trusts  (2d  ed.),494,  496,  n. 

Estate,  66  Mo.  App.  586;  Howard  A  southern  guardian,  who  invested 

t'.  Manning  (Ark.),  44  S.  W.  1126;  his   ward's    money    in    confederate 

1    Ames  on   Trusts   (2d  ed.),  482,  bonds  during  the  War  of  the  Rebel- 

484,  496,  n.     There  should  doubt-  lion,  was  held  not  liable  therefor,  in 

less  be  a  distinction  between  losses  Baldy  v.  Hunter,   171   U.    S.  388 ; 

by  misconduct  and  those  by  mere  98  Ga.  170 ;  see  Franklin  v.  ]McEl- 

neglect  or  lack   of  attention  or  of  roy,   99  Ga.  123;  Finch  v.  Finch, 

good  judgment,  but  the  distinction  28  S.  C.  164. 
is  not  clearly  followed  out  in  the 

669 


§  468.]  INTEREST.  [CIIAP.    XV. 

trustees  is  to  treat  all  the  income  of  the  trust  received 
during  the  current  year  as  unproductive,  and  to  charge  against 
the  income  of  the  current  year  all  the  disbursements,  includ- 
ing the  compensation  or  commissions  of  the  trustees  for  the 
same  year,  and  to  strike  a  balance,  upon  which,  as  a  general 
rule,  interest  is  to  be  allowed,^  but  in  such  a  way  as  not  to 
compound  it.^  If,  however,  these  balances  are  too  small  to 
invest,  or  for  any  reason  the  trustees  might  equitably  keep 
them  on  hand,  interest  will  not  be  allowed  upon  them  until 
the  balances  so  accumulate  as  to  be  properly  invested,  or 
until  the  trustees  ought  to  invest  them.^  Of  course,  as  soon 
as  a  trustee  properly  pays  the  fund  into  court,  his  liability 
for  interest  ceases.^  But  so  long  as  any  litigation  is  pending 
over  the  fund,  and  the  money  is  not  brought  into  court,  the 
trustee  is  bound  to  keep  it  invested,  and  he  is  liable  for 
legal  interest.^  But  a  guardian  is  not  liable  to  interest  while 
the  settlement  of  his  account  is  pending.^ 

1  Boynton  r.  Dyer,  18  Pick.  1 ;  Pettus  v.  Clawson,  4  Rich.  Eq.  92  ; 
Jones  V.  Morrall,  2  Sim.  (n.  s.)  241;  Clarkson  v.  De  Peyster,  2  Wend.  78; 
Vanderheyden  v.  Vanderheyden,  2  Paige,  288  ;  Luken's  App.,  47  Pa.  St. 
356 ;  Reynolds  v.  Waker,  29  Miss.  250 ;  Roach  v.  Jelks,  40  Miss.  754 ; 
Crump  V.  Gerack,  id.  765. 

2  Rowland  v.  Best,  2  McCord,  Ch.  317 ;  Jordon  v.  Hunt,  2  Hill,  Eq. 
145;  Walker  v.  Bynum,  4  Des.  555  ;  Powell  v.  Powell,  10  Ala.  900  ;  Shep- 
hard  y.  Stark,  3  Munf.  29 ;  Burwell  v.  Anderson,  3  Leigh,  348;  Garrett 
V.  Carr,  3  id.  407 ;  Campbell  v.  Williams,  3  Mon.  122  ;  Jones  v.  Ward, 
10  Yerg.  160.     See  Eliott  v.  Sparrell,  114  Mass.  404. 

3  Rapalje  v.  Hall,  1  Sandf.  Ch.  399;  Woods  v.  Garnett,  6  Leigh,  271 ; 
Graves's  App.,  50  Penn  St.  189;  Luken's  App.,  47  id.  356.  Trustee  is 
generally  chargeable  with  interest  to  be  computed  from  the  first  day  of 
January  following  his  receipt  of  the  funds.  Livingston  v.  Wells,  8  S.  C. 
347. 

4  January  v.  Poyntz,  2  B.  Mon.  404 ;  Yundt's  App.,  13  Penn.  St.  575 ; 
Lane's  App.,  24  id.  487;  Younge  v.  Brush,  38  Barb.  294;  Brandon  v. 
Hoggatt,  32  Miss.  335. 

6  Ibid. 

*  Yader's  App.,  45  Penn.  St.  394.      But  a  trustee  who  retained  funds 
in  his  hands,   making  a  claim  to  them  as  his  compensation,  which  he 
failed  to  establish,  was  charged  with  interest  from  the  time  he  ought  to 
have  paid  them.     Jenkins  v.  Doolittle,  69  111.  415. 
670 


CHAP.    XV.]  INTEREST.  [§  470. 

§  469.  (2)  If  a  trustee  is  directed  and  bound  to  invest  in 
a  particular  stock  or  fund  within  a  certain  time,  or  within  a 
reasonable  time,  and  he  neglects  to  make  the  investment  as 
directed,  the  cestui  que  trust  has  his  election  to  take  the 
money  and  legal  interest  thereon,  or  so  much  stock  as  the 
money  would  have  purchased  at  the  time  when  the  invest- 
ment ought  to  have  been  made,  and  the  dividends  thereon.' 
It  has  been  held  in  some  cases,  that  if  trustees  were  directed 
to  invest  in  stocks,  or  in  real  estate,  and  they  neglected  to  do 
either,  the  cestui  que  trust  might  have  the  amount  of  stocks 
that  could  have  been  purchased,  and  the  dividends  thereon. ^ 
On  the  other  hand,  it  has  been  held,  and  is  now  established 
in  such  case,  that,  as  the  trustees  might  have  invested  in 
real  securities,  and  such  real  securities  might  have  been  of 
less  value  than  the  original  fund,  the  cestui  que  trust  can 
have  only  the  money  and  legal  interest  thereon,  and  cannot 
claim  the  amount  of  stocks  that  might  have  been  purchased. ^ 
If  trustees  are  directed  to  invest  a  certain  fund  separately, 
they  will  be  liable  for  losses  occurring  by  reason  of  neglect- 
ing this  provision.*  In  Wisconsin,  it  has  been  held  that  if 
a  trustee  is  directed  to  invest  in  United  States  bonds  or  in 
real  estate  security,  the  interest  which  he  might  have  ob- 
tained upon  proper  real  estate  security  is  the  measure  of  his 
liability  for  failure  to  invest  the  fund.^ 

§  470.  (3)  If  the  trust  fund  was  properly  invested,  accord- 
ing to  the  direction  of  the  trust  instrument,  or  according  to 

1  Shepherd  r.  Mauls,  4  Hare,  504;  Robinson  v.  Robinson,  1  De  G., 
M.  &  G.  25G ;  Byrchall  v.  Bradford,  G  MadJ.  235 ;  Vyse  r.  Foster,  S  Ch. 
334  ;  Ihmsen's  App.,  43  Penn.  St.  471 ;  Blauvelt  v.  Ackerman,  20  N.  J. 
Eq.  141;  Darling  v.  Hammer,  id.  220;  McElhenny's  App.,  46  Penn.  St. 
347. 

^  Hockley  v.  Bantock,  1  Russ.  141 ;  Watts  r.  Girdlestone,  6  Beav.  188 ; 
Ames  V.  Parkinson,  7  Beav.  379;  Ouseley  v.  Anstnither,  10  Beav.  456. 

»  Marsh  r.  Hunter,  6  Madd.  295 ;  Shepherd  r.  IMauls,  4  Hare,  500 ; 
Robinson  v.  Robinson,  1  De  G.,  M.  &  G.  256;  Phillipson  v.  Gatty,  7 
Hare,  516;  Rees  v.  Williams,  1  De  G.  &  Sm.  314. 

*  Wilmerding  v.  McKesson,  103  N.  Y.  329. 

6  Andrew  c.  Schmitt,  64  Wis.  664. 

671 


§  471.]  COMPOUND   INTEREST.  [CHAP.    XV. 

law  and  the  trustee  improperly  converts  the  fund  into 
money  and  neglects  to  invest  it,  or  invests  it  improperly, 
or  uses  it  in  trade,  business,  or  speculation,  the  cestui  que 
trust  may,  at  his  election,  take  the  dividends  or  interest 
which  the  fund  would  have  produced  if  the  investment  had 
been  suffered  to  remain  where  it  was  properly  made ;  or  he 
may  take  legal  interest  on  the  fund ;  or  he  may  take  all  the 
profits  that  have  been  made  upon  the  fund.^  If  the  cestui 
que  trust  elects  to  take  the  profits,  he  must  take  them  during 
the  whole  period,  subject  to  all  the  losses  of  the  business :  he 
cannot  take  profits  for  one  period  and  interest  for  another.^ 

§  471.  (4)  If  the  trustee  improperly  changes  an  invest- 
ment, and  refuses  to  reinvest  the  money  in  a  legal  manner; 
or  if  he  refuses  to  invest  the  fund  in  the  first  instance;  or  if 
he  uses  the  fund  in  trade,  business,  or  speculation;  or  makes 
an  improper  or  illegal  investment,  —  the  cestui  que  trust  may 
have  the  income  that  would  have  accrued  from  the  proper  in- 
vestment ;  or  he  may  have  simple  interest  at  the  legal  rate ;  ^ 
or  he  may  take  all  the  profits  of  the  trade  or  business,  or 
other  investment  or  employment  of  the  money,  and  if  the 
trustee  refuse  to  account  for  the  profits  arising  from  his  use 
of  the  money,  or  if  he  has  so  mingled  the  money  and  the 
profits  with  his  own  money  and  profits  that  he  cannot  sepa- 
rate and  account  for  the  profits  that  belong  to  the  cestui  que 
trust,  the  cestui  que  trust  may  have  legal  interest  computed 
with  annual  rests,  in  order  to  compound  it.*  (a)     And  some- 

1  Jones  V.  Foxall,  15  Beav.  392;  Robinett's  App.,  36  Penn.  St.  174; 
Saltmarsh  v.  Barrett,  31  Beav.  349  ;  Kyle  r  Barnett,  17  Ala.  306 ;  Barney 
V.  Saunders,  16  How.  543 ;  Brown  v.  De  Tastet,  Jac.  284  ;  Cook  v.  Collin- 
gridge,  id.  607 ;  Crawshay  v.  Collins,  15  Ves.  218 ;  2  Buss.  325 ;  Feather- 
stonhaugh  v.  Fenwick,  17  Ves.  298  ;  Docker  v.  Somes,  2  Myl.  &  K.  655 ; 
Wedderburn  v.  Wedderburn,  2  Keen,  722 ;  4  Myl.  &  Cr.  41 ;  Norris's 
App.,  71  Penn.  St.  125. 

2  Heathcote  v.  Hulme,  IJ.  &  W.  122. 

8  Cogbill  V.  Boyd,  79  Va.  1,  and  cases  in  next  note;  Seguin's  App., 
103  Penn.  St.  139. 

*  Jones  u.  Foxall,  15  Beav.  392;  Raphael  v.  Boehm,  11  Ves.  92;  13 

(a)  See   Forbes    v.    Allen,    166    351 ;  Davis  ?;.  Eastman,  68  Vt.  225; 
Mass.  569  ;  White  v.  Ditson,  140  id.    Lehman  v.  Rothbarth,  159  111.  270; 
672 


CHAP.    XV.]  COMPOUND    INTEREST.  [§  471. 

times  even  biennial  rests  will  be  allowed  in  computing  the 
compound  interest  where  the  trustee  has  used  the  fund  in 
his  own  business.*  There  has  been  considerable  conflict  of 
opinion  and  authority  upon  the  matter  of  compounding  inter- 
est against  a  trustee.  Lord  Cranworth  said,  that  a  trustee 
might  as  well  be  charged  with  more  principal  than  he  had 
received  as  to  be  charged  with  more  interest. ^  In  another 
case,  it  was  said  in  England  that  a  trustee  would  be  charged 
with  more  than  four  per  cent  interest:^  (1)  when  he  ouyld  to 
have  received  more;  (2)  when  he  did  receive  more;  (3) 
when  he  is  presumed  to  receive  more ;  and  (4)  when  he  is 
estopped  to  say  he  did  not  receive  more.* (a)  Compound 
interest  was  allowed  in  one  case  where  the  trustee  held  the 
fund  after  the  minor  cestui  came  of  age  without  making  any 
arrangement  with  the  child  or  explaining  to  him  his  rights.^ 
The  burden  is  on  the  trustee  to  show  that  he  made  no  profits, 
or  received  no  benefit  from  the  money  ;^  and  if  he  refuses  to 

Ves.  407  ;  1  Madd.  1G7  ;  Saltmarsh  v.  Barrett,  31  Beav.  349  ;  Walker  r. 
Woodward,  1  Russ.  107  ;  Heighington  v.  Grant,  5  Myl.  &  Cr.  258  ;  2  Phill. 
600;  Williams  r.  Powell,  15  Beav.  461 ;  Walrond  r.  Walrond,  29  Beav. 
586 ;  Stackpole  c.  Stackpole,  4  Dow.  P.  C.  209 ;  Eliott  v.  Sparrell,  114 
Mass.  404  ;  State  v.  Howarth,  48  Coun.  207  ;  Hook  v.  Lowry,  95  IST.  Y. 
103. 

1  Page's  Ex'r  v.  Holeman,  82  Ky.  573. 

2  Att.  Gen.  v.  Alford,  4  De  G.,  M.  &  G.  851. 
8  Penney  J'.  Avison,  3  Jur.  (x.  s.)  62. 

4  Att.  Gen.  r.  Alford,  4  De  G.,  M.  &  G.  851 ;  Norris's  App.,  71  Penn. 
St.  106. 

6  Emmet  v.  Emmet,  17  Ch.  D.  142. 

6  Knott  V.  Cottee,  16  Beav.  77 ;  16  Jur.  752 ;  Swindall  v.  Swindall, 
8  Ired.  Eq.  286;  Ringgold  r.  Ringgold,  1  H.  &  G.  11  ;  Diffenderffer  r. 
Winder,  3  G.  &  J.  311;  Schieffeliu  u.  Stewart,  1  Johns.  Ch.  620  ;  Bryant 
V.  Craige,  12  Ala.  354 ;  Hodge  v.  Hawkins,  1  Dev.  &  B.  Eq.  566 ;  Hugh 
V.  Smith,  2  Dana,  253  ;  Karr  v.  Karr,  6  Dana,  3;  Smith  v.  Kennard,  38 
Ala.  695;  McEIhenny's  Ap.,  61  Penn.  St.  188.     Annual  rests  were  allowed 

White  V.   Sherman,   168   111.    589 ;  Ricker  (14  Mont.  153),  29  L.  R.  A. 

Hughes  V.   People,    111    111.    457;  622,  and  note. 

Kane  v.  Kane  (Mo.),  48  S.  W.  446  ;         (a)  See  Forbes  v.  Ware,  172  Mass. 

1  Ames  on  Trusts  (2d  ed.),  498,  n. ;  306. 

In   re   Eschrich,   85    Cal.    98 ;    Re 

VOL.  I. —  43  673 


§  471.]  COMPOUND   INTEREST.  [CIIAP.    XV. 

account  or  to  show  the  amount  of  profits  received,  the  court 
will  give  compound  interest,  in  order  that  it  may  be  certain 
that  the  cestui  que  trust  gets  the  profits  of  the  trade  or  busi- 
ness in  which  the  trustee  has  employed  the  money. ^  To 
justify  the  compounding  of  interest,  there  must  be  a  wilful 
breach  of  duty,^  and  not  simple  neglect;  there  must  be  some 
special  and  peculiar  circumstances.^  Compound  interest  will 
not  be  given  against  negligent  trustees  where  the  facts  do  not 
indicate  a  withdrawal  of  the  funds  from  their  legitimate 
channels  of  accumulation,  or  a  realization  by  the  trustees  of 
profits  on  the  assets.^  If  the  money  is  simply  used  in  busi- 
ness, and  it  appears  that  the  profits  were  not  equal  to  the 
interest,  annual  rests  will  not  be  made.^  It  appears  now  to 
be  the  settled  doctrine,  that  compound  interest  will  not  be 
given  as  a  penalty  for  a  breach  of  trust,  nor  will  it  be  given 
for  an  employment  of  the  money  in  the  course  of  trade,  if 
the  profits  made  in  the  trade  can  be  clearly  ascertained,  and 

in  Harland's  Acct.,  5  Rawle,  329;  Livingston  v.  Wells,  8  S.  C.  347;  the 
question  was  left  open  in  Dietterich  t?.  Heft,  3  Penn.  St.  91  ;  McCall's  Est., 
1  Ash.  357;  Pennypacker's  App.,  41  Penn.  St.  44,  and  rests  were  wholly 
rejected  in  Graves's  App.,  50  Penn.  St.  189. 

1  Knott  V.  Cottee,  IG  Beav.  77;  16  Jur.  752;  Swindall  v.  Swindall, 
8  Ired.  Eq.  286;  Ringgold  v.  Ringgold,  1  H.  &  G.  11 ;  Diffenderffer  v. 
Winder,  3  G.  &  J.  311 ;  Schieffelin  v.  Stewart,  1  Johns.  Ch.  620;  Bryant 
V.  Craige,  12  Ala.  354 ;  Hodge  v.  Hawkins,  1  Dev.  &  B.  Eq.  566 ;  Hugh 
V.  Smith,  2  Dana,  253;  Karr  v.  Karr,  6  Dana,  3;  Smith  v.  Kennard,  38 
Ala.  695  ;  McElhenny's  App.,  61  Penn.  St.  188.  Annual  rests  were  allowed 
in  Harland's  Acct.,  5  Rawle,  329;  Livingston  v.  Wells,  8  S.  C.  347;  the 
question  was  left  open,  Dietterich  v.  Heft,  3  Barr,  91;  McCall's  Est., 
1  Ash.  357 ;  Pennypacker's  App.,  41  Penn.  St.  44,  and  rests  were  wholly 
rejected  in  Graves's  App.,  50  Penn.  St.  189. 

2  Hughes  V.  People,  111  111.  457;  Wilmerding  v.  McKesson,  103  N.  Y. 
329. 

8  Garniss  v.  Gardner,  1  Edw.  Ch.  128 ;  Ackerman  v.  Emott,  4  Barb. 
626 ;  Tebbs  v.  Carpenter,  1  Madd.  290;  Fay  v.  Howe,  1  Pick.  528,  and  n. ; 
Clemens  v.  Caldwell,  7  B.  Mon.  171 ;  Fall  v.  Simmons,  6  Ga.  272 ;  Kennan 
V.  Hall,  8  Ga.  417;  Cartledge  v.  Cutlifi,  21  Ga.  1. 

4  Ames  ».  Scudder,  83  Mo.  189. 

6  Utica  Ins.  Co.  v.  Lynch,  11  Paige,  521 ;  Kyle  v.  Barnett,  17  Ala.  306  ; 
Ringgold  V.  Ringgold,  1  H.  &  G.  11 ;  Myers  v.  Myers,  2  McCord,  Ch.  214; 
Wright  V.  Wright,  id.  185;  Johnson  t;.  Miller,  33  Miss.  553. 
674 


CHAP.    XV.]  COMPOUND    INTEREST.  [§  472. 

arc  less  than  legal  interest,  or  less  than  five  per  cent;  but  if 
nothing  apjjcars  as  to  the  i)rorits,  the  courts  will  presume 
that  the  ordinary  profits  of  trade  are  made,  or  five  per  cent 
in  England  and  the  legal  interest  in  the  United  States.  And 
if  the  interest  or  profits  of  the  fund  arc  retained  in  the  trade, 
instead  of  being  paid  out,  it  will  be  presumed  that  the  trus- 
tees made  a  similar  rate  of  interest  or  profit  upon  the  sum 
retained  in  trade,  and  therefore  annual  rests  will  be  made, 
and  compound  interest  given ;  not  as  punishment  or  penalty, 
but  because  the  fund  and  the  income  employed  in  trade  are 
presumed  to  produce  that  amount  of  income,  interest,  or 
profit.^  The  trustee  must  seek  out  the  cestui  que  trust  to  pay 
the  income  to  him,  or  he  must  pay  interest  upon  it.  So, 
where  a  trustee  receives  property  and  sells  it,  he  must  ac- 
count for  the  proceeds.  And  if  he  refuses,  he  will  be  charged 
with  the  highest  value  that  can  be  sustained  by  the  evidence. ^ 
But  a  mere  payment  into  bank  to  the  general  account  of  the 
trustee  is  not  such  an  employment  of  the  money  as  to  justify 
compound  interest.  ^  A  trustee  is  accountable  for  all  interest 
and  profits  actually  received  by  him  from  the  trust  fund,  and 
for  all  which  he  miyht  have  obtained  hy  due  diligence  and 
reasonable  slcill.^ 

§  472.  If  a  trustee  is  directed  to  make  a  certain  invest- 
ment, and  to  accumulate  the  income,  and  he  neglects  or  re- 
fuses so  to  do,  the  cestui  que  trust  is  entitled  to  compound 
interest,  upon  all  the  authorities,  (a)      If,  by  the  instrument 

1  Jones  V.  Foxall,  15  Beav.  388 ;  Burdick  v.  Garrick,  L.  R.  5  Ch.  233. 
See  the  matter  of  compound  interest  elaborately  discussed  by  Mr.  Justice 
Scarburgh  in  Ker  v.  Snead,  11  Law  Rep.  217,  Boston,  Sept.  1848;  and 
Wright  V.  Wright,  2  IMcCord,  Eq.  200-204  ;  McKnight  v.  Walsh,  23  N.  J. 
Eq.  13G ;  24  id.  498  ;  Lothrop  v.  Smalley,  23  id.  192. 

2  McKnight  v.  Walsh,  23  N.  J.  Eq.  136  ;  Burdick  v.  Garrick,  L  H. 
5  Ch.  233. 

8  Norton's  Estate,  7  Phila.  484. 
*  Cruce  V.  Cruce,  81  Mo.  076. 

(a)  See  Rogers' Estate,  179  Penn.  8;  Burt  v.  Gill  (Md.),  42  Atl.  968; 
St.  609;  Iloweirs  Estate,  180  id.  Fritts'  Estate,  44  N.  Y.  S.  344.  A 
515;  Milligan  v.  Pleasants,  74  Md.     direction  to  accumulate  must   not 

675 


§  472.]  COMPOUND   INTEKEST.  [CHAP.    XV. 

of  trust,  interest  is  to  be  added  to  principal  semi-annually, 
semi-annual  rests  will  be  made ;  otherwise  annual  rests  will 
be  made,^  or  an  inquiry  will  be  directed  to  ascertain  what 
would  have  been  the  amount  of  the  accumulation  if  the  direc- 
tions had  been  followed,  in  order  to  charge  the  trustee  with 
the  amount.  2  And  where  a  trustee  was  ordered  by  the  court 
to  invest  a  sum  in  controversy,  and  he  neglected  to  do  so,  he 
was  ordered  to  bring  the  whole  sum  into  court  with  compound 
interest. 3  Interest  may  be  allowed  against  a  trustee,  although 
the  bill  does  not  pray  for  it.*  If  a  trustee  improperly  with- 
holds money  as  a  commission,  he  may  be  made  to  pay  com- 
pound interest  on  it.^ 

1  Raphael?).  Boehm,  11  Ves.  92;  13  Ves.  407,  590;  Dornford  v.  Dora- 
ford,  12  Ves.  127;  Knott  v.  Cottee,  16  Beav.  77;  Pride  v.  Fooks,  2  Beav. 
430 ;  Byrne  v.  Norcott,  13  Beav.  336 ;  Stackpole  v.  Stackpole,  4  Dow.  P.  C. 
209;  Brown  v.  Southhouse,  3  Bro.  Ch.  107;  Karr  v.  Karr,  6  Dana,  3; 
Bowles  V.  Drayton,  1  Des.  489;  Hodge  v.  Hawkins,  1  Dev.  &  Bat.  564; 
Wilson  V.  Peake,  3  Jur.  (n.  s.)  155 ;  Brown  v.  Sansome,  1  McCle.  &  Yo. 
427;  Lesley  v.  Lesley,  1  Dev.  117;  Fitham  v.  Turner,  23  L.  T.  (n.  s.) 
345 ;  Court  v.  Robarts,  6  CI.  &  Fin.  64 ;  Townsend  v.  Townsend,  1  Gif. 
201 

2  Brown  v.  Sansome,  1  McCle.  &  Yo.  427. 

8  Latimer  v.  Hansom,  1  Bland,  51 ;  Winder  v.  DiffenderfEer,  2  Bland, 
166  ;  McKuightw.  Walsh,  23  N.  J.  Eq.  136;  24  id.  498;  Lathropu.  SmaUey, 
23  id.  192. 

4  Bloggu.  Johnson,  L.  R.  2  Ch.  225. 

5  McKnight  V.  Walsh,  23  N.  J.  Eq.  136. 

contravene    the   rule    against  per-  111.    432  ;     Duggan   v.    Slocum,   83 

petuities.     See  Hascall  v.  King,  51  F.  R.  244 ;  Re  Errington,  76  L.  T. 

N.  Y.  S.  73 ;    In  re  Rogers,   48  id.  616. 
175;    Ingraham   r.   Ingraham,    169 


676 


JC<:0!iTHFR';Rrci':',;.: 


AA      000  851   277      4 


